Judge: David A. Rosen, Case: 22GDCV00324, Date: 2023-03-02 Tentative Ruling

Case Number: 22GDCV00324    Hearing Date: March 2, 2023    Dept: E

Hearing Date: 03/03/2023 – 10:00am
Case No.  22GDCV00324
Trial Date:   08/21/2023
Case Name: MARIA ISABEL MARTINEZ CORTES, an indiv., v. FORD MOTOR COMPANY, a Delaware Corporation, and DOES 1-10

TENTATIVE RULING – MOTION FOR JUDGMENT ON THE PLEADINGS 

Moving Party: Defendant, Ford Motor Company

Responding Party: Plaintiff, Maria Isabel Martinez Cortes

Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok

Moving Papers: Notice of Motion/Motion; Proposed Order;

Opposition Papers: Opposition; Amarkarian Declaration

Reply Papers: Reply; Objection to Amarkarian’s Declaration

RELIEF REQUESTED 
Defendant, Ford Motor Company, moves for an order for judgment on the pleadings as to Plaintiff’s action. Defendant moves under CCP §438.

BACKGROUND
Plaintiff filed a complaint on 06/16/2022 alleging three causes of action: (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2

Plaintiff’s actions arise from the purchase of a used 2018 Ford F-150 demonstrator vehicle that was allegedly delivered to Plaintiff with serious defects and nonconformities to warranty.

PROCEDURAL

Meet and Confer
Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.  (Code Civ. Proc. § 439(a).) 

Here, moving party met and conferred. (Decl. Dizon ¶3.) Opposition argues that moving party did not meet and confer. However, this Court finds Opposition’s argument unavailing. “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (CCP §439(a)(4).)

LEGAL STANDARD – MOTION FOR JUDGMENT ON THE PLEADINGS
If moving party is a defendant, a motion for judgment on the pleadings may be made if either of the following conditions exist: (1) The court has no jurisdiction of the subject of the cause of action alleged in the complaint, or (2) The complaint does not state facts sufficient to constitute a cause of action against the defendant. (CCP §438(c)(1)(B).)

“The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (CCP §438(d).)

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]”  (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)  “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).)  The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)  

ANALYSIS
Defendant argues that Plaintiff’s car is not a “new motor vehicle” under the Song-Beverly act based on Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez), and therefore Defendant cannot bring any of these causes of action. Defendant argues that this Court should use its discretion and use Rodriguez as binding authority to grant this motion, whereas Plaintiff states we should follow Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 (Jensen). Further, Defendant appears to argue that Rodriguez is more persuasive than Jensen based on the fact that the Supreme Court of California granted review and denied requests for de-publication, but the Court does not find Defendant’s argument convincing that Rodriguez is any more persuasive than Jensen. “Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.” (CRC Rule 8.1115(e)(1). “Of course, the rule under discussion has no application where there is more than one appellate court decision, and such appellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.)

Here, the Court in its discretion, and in view of the Review granted in Rodriguez, follows Jensen.

In Jensen, Plaintiff leased a used demonstrator vehicle, and the Third District Court of Appeals found that cars sold with a balance remaining on the manufacturer’s new motor vehicle warranty are included within the definition of “new motor vehicle.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123.)

Here, Plaintiff alleged it obtained a used demonstrator vehicle, but Plaintiff did not allege it was sold with a remaining balance on the manufacturer’s new motor vehicle warranty. Neither party makes clear why their arguments apply to all three causes of action. However, since in Jensen, the Plaintiff sued the manufacturer for willful violation of the Song-Beverly Consumer Warranty Act – Civ Code §1790 et seq, then presumably this rule applies to all causes of action. Therefore, Defendant’s motion is GRANTED on this ground.

Further, moving papers indicate how the Complaint doesn’t indicate the seller, and Reply indicates how many of the facts asserted in the Opposition were not actually alleged in the Complaint, which Defendant is correct on. For example, in the Opposition, Plaintiff mentions a specific dealer, and Plaintiff mentions allegations that the vehicle was dealer-owned. However, none of these allegations were in the Complaint. Therefore, leave to amend is granted.

Defendant singles out the second cause of action for Plaintiff’s implied warranty claim as to why to specifically grant the motion as to an individual cause of action. Defendant argues Plaintiff cannot state a claim here because Plaintiff is not in privity with Ford and because only distributors and retail sellers, not manufacturers are liable for breach of implied warranty.

“It is evident from these provisions that only distributors or sellers of used goods—not manufacturers of new goods—have implied warranty obligations in the sale of used goods. (See § 1795.5.) As one court has put it, the Song-Beverly Act provides similar remedies (to those available when a manufacturer sells new consumer goods) “in the context of the sale of used goods, except that the manufacturer is generally off the hook.” (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399.)

Here, Plaintiff is suing the alleged manufacturer, Ford. Therefore, based on the Nunez case, it would seem like leave to amend would not be appropriate for the second cause of action. However, the Court is not entirely certain about Defendant’s argument for several reasons. First, Opposition did not address this argument, so the Court had to rely only on moving papers and its own research. Second, the plain language of Civil Code 1792, the statute Plaintiff appears to be basing its implied warranty claim on, states, “Unless disclaimed in the manner prescribed by this chapter, every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable. The retail seller shall have a right of indemnity against the manufacturer in the amount of any liability under this section.” (Civil Code §1792.) Therefore, the plain language of the statute seems to potentially indicate something contrary to Defendant’s argument. Further, Defendant states things like, “Plaintiff does not allege she purchased the Subject Vehicle from Ford (or even an authorized dealer),” and “Plaintiff has not alleged that Ford offered the Subject Vehicle for sale to the public. (Indeed, she has not identified the seller of their vehicle at all.)” The Court is not sure why Defendant is specifically calling out these specific issues, which makes the Court uncertain if Defendant is stating that if these things were alleged, Plaintiff could potentially allege a claim.

“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.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) Here, Defendant has indicated several allegations in its Opposition that were not in its original complaint that at the very least could potentially cure some of the defects in the Complaint.

TENTATIVE RULING
Motion for judgment on the pleadings is GRANTED as to all causes of action with 20 days’ leave to amend with respect to all causes of action.