Judge: Armen Tamzarian, Case: 23STCV09498, Date: 2023-11-16 Tentative Ruling

Case Number: 23STCV09498    Hearing Date: November 16, 2023    Dept: 52

Defendant Ford Motor Company (Ford) moves for judgment on the pleadings against plaintiff Sandra Ayala.  Ford contends Ayala’s first amended complaint (FAC) fails to state facts sufficient to constitute a cause of action. 

            This action arises from Ayala’s purchase of a vehicle.  Notably, the FAC does not allege facts indicating plaintiff’s vehicle was new.  Instead, it states that on January 30, 2022, plaintiff purchased a “2020 Ford F-150” that “was/is” a “new motor vehicle” under the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq. (Song-Beverly Act or Act).  (FAC ¶¶ 5, 6.)  Although Ayala alleges that she “received written warranties” (FAC ¶ 7), she does not allege from whom she purchased the vehicle. 

            Ayala further alleges that the vehicle had certain defects covered by the warranty and that she presented the vehicle on at least two separate occasions to one of Ford’s authorized service and repair facilities.  The facility, however, failed to repair the defects and failed to purchase the vehicle back.  (FAC ¶¶ 10-13.)

            The FAC sets forth five causes of action.  The first is for breach of the implied warranty of merchantability under the Song-Beverly Act.  Under the Act, a “buyer of consumer goods injured by a breach of the implied warranty of merchantability,” can pursue certain remedies.  (Civ. Code, § 1791.1, subd. (d).)  “Consumer goods” are defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes.”  By its plain terms, this cause of action only applies to a “new product.”  Because plaintiff fails to allege that she purchased a new product, she fails to state a claim for breach of the implied warranty of merchantability under the Song-Beverly Act.

            Ayala’s second cause of action is for breach of express warranty under the Song-Beverly Act.  The Act provides: “If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle . . . to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle” or “or promptly make restitution to the buyer.”  (Civ. Code, § 1793.2, subd. (d)(2).)  “ ‘New motor vehicle’  means a new motor vehicle that is bought or used primarily for personal, family, or household purposes.”  (Civ. Code, § 1793.22, subd. (e)(2).)  “ ‘New Motor Vehicle’  also means a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty.”  (Ibid.)  “A demonstrator is a vehicle assigned by a dealer for the purpose of demonstrating qualities and characteristics common to vehicles of the same or similar model and type.”  (Ibid.)

            Here, Ayala does not allege facts indicating she purchased a new motor vehicle as defined by the statute.  She thus fails to state facts sufficient to constitute a claim for breach of express warranty under the Song-Beverly Act.

            Ayala’s citation to Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen) is unpersuasive.  In Jensen, a manufacturer’s dealer issued a new car warranty on a car that had previously been owned by the manufacturer’s subsidiary.  (Id.  at pp. 119, 122.)  Plaintiff makes no similar allegations here.  This case is thus factually distinguishable from Jensen.  (See Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 223-224 (Rodriguez) [distinguishing Jensen because it involved a case where the dealer issued a new car warranty].)

            The court notes that there is a split of authority among the Courts of Appeal regarding whether the sale of a previously owned vehicle with some balance remaining on the manufacturer’s express warranty is a “new motor vehicle” within the meaning of the Song-Beverly Act.  (See Rodriguez, supra, 77 Cal.App.5th at p. 214 [holding that it is not a new motor vehicle]; Jensen, supra, 35 Cal.App.4th at p. 123 [holding that it is a new motor vehicle].)  The court finds Rodriguez more persuasive than Jensen on this point.

            Ayala’s third and fourth causes of action are for breach of express warranty under Commercial Code section 2313 and violation of the Magnuson-Moss Warranty Act.  In its motion, Ford only mentions these claims in passing.  Ford fails to cite any legal authority and does not make a cogent legal argument.  Defendant thus forfeited any argument with respect to these claims.  (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [absence of cogent legal argument or citation to authority forfeits the contention].)

            Ayala’s fifth cause of action is for violation of the Consumer Legal Remedies Act, Civil Code section 1750 et seq. (CLRA).  The CLRA prohibits certain “unfair or deceptive acts or practices” in the sale of consumer goods, including misrepresentations regarding the quality of the goods.  (See Civ. Code, § 1770, subd. (a).)  Both affirmative misrepresentations and the failure to disclose material facts by a party with a duty to disclose a safety concern are actionable under the CLRA.  (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1258 (Gutierrez).) 

            “[A] duty to disclose material safety concerns ‘can be actionable in four situations: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) when the defendant makes partial representations but also suppresses some material fact.’ ”  (Gutierrez, supra, 19 Cal.App.5th at p. 1260.)  A cause of action under the CLRA must be stated with “reasonable particularity.”  (Id. at p. 1261.) 

            In the present case, Ayala does not allege with reasonable particularity any affirmative misrepresentation Ford allegedly made.  Likewise, Ayala does not state with reasonable particularity any facts indicating Ford had a duty to disclose a safety defect under one or more of the four categories described above.  The FAC thus fails to state facts sufficient to support a CLRA claim.

            Ford’s motion for judgment on the pleadings with respect to the first, second, and fifth causes of action in the FAC is granted with 20 days leave to amend.  Ford’s motion for judgment on the pleadings with respect to the third and fourth causes of action in the FAC is denied.