Judge: Alison Mackenzie, Case: 21STCV03040, Date: 2023-11-27 Tentative Ruling
Case Number: 21STCV03040 Hearing Date: November 27, 2023 Dept: 55
NATURE OF PROCEEDINGS: Defendant’s Motion for Judgment on the Pleadings;
Defendant’s Motion for Terminating Sanctions
Both unopposed motions
are granted.
This entire action is
ordered dismissed with prejudice.
On 1/26/21, Plaintiff
filed a Lemon Law Complaint against FORD, alleging the purchase of a used 2016
Ford Mustang having defects including engine, electrical, and structural
system.
Defendant filed a motion
for judgment on the pleadings and another for terminating sanctions.
Defendant argues that the
Complaint fails to state a cause of action because the Song-Beverly Act does
not apply to used vehicles, which bars Plaintiff’s first-through-third causes
of action under the Song-Beverly Act (citing Rodriguez v. FCA US, LLC
(2022) 77 Cal. App. 5th 209, 215).
Additionally, Defendant requests dismissal of the Complaint, because, on
10/5/22, the Court ordered Plaintiff to appear for his deposition in 10 days,
but Plaintiff failed to appear, and cannot be located due to failure to provide
an updated address.
On 9/1/22, an order was
entered allowing Plaintiff’s counsel leave to withdraw.
“In the case of either a
demurrer or a motion for judgment on the pleadings, leave to amend should be
granted if there is any reasonable possibility that the plaintiff can state a
good cause of action.” Gami v.
Mullikin Medical Ctr. (1993) 18 Cal. App. 4th 870, 876. After granting a statutory judgment on the
pleadings, judges are to enter judgment in one of the specified statutory
procedures. CCP §438(h), (i).
Used vehicles, purchased
from a retail seller unaffiliated with manufacturers, do not statutorily
qualify as new motor vehicles, when there is a balance remaining on
manufacturers’ warranties, although opinions arguably have held
differently. Rodriguez v. FCA US, LLC
(4th Dist. 2022) 77 Cal. App. 5th 209, 223, 224.
Where a party willfully
disobeys a discovery order, courts have discretion to impose terminating
sanctions. E.g., CCP
§§2023.010(g), 2030.290(c); R.S.
Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.
“[T]he ‘person to be
served’ has the burden of notifying the court of any change of address, and
failure so to do does not enable him to claim improper notice.” Bethlahmy v. Customcraft Industries, Inc.
(1961) 192 Cal. App. 2d 308, 310. Accord Whitehead v. Habig (2008)
163 Cal.App.4th 896, 903 (no denial of due process in lack of notice where
party never filed a notice of change of address); Lint v. Chisholm (1981) 121 Cal. App.
3d 615, 621 (“He was aware of his duty to inform the court of any change of
address, and his failure to do so does not enable him to claim lack of
notice.”); Westervelt v. Robertson
(1981) 122 Cal. App. 3d Supp. 1, 8. See also CRC Rule 2.200 (attorneys and
parties must serve notice of a change of address).
The failure to file a
proper and timely opposition in trial court creates a waiver of the issues on
any appeal. Bell v. Am. Title Ins. Co.
(1991) 226 Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683,
693. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.
Here, the Court dismisses
the Complaint, because (1) Plaintiff ‘s claims under the Song-Beverly Act do
not apply to used vehicles and there is no proposal of a successful amendment, (2)
Plaintiff willfully failed to attend a deposition as ordered, (3) Plaintiff
failed to file a notice of change of address and (4) Plaintiff failed to file
oppositions to the instant motions.
Therefore, this entire
action is dismissed.