Judge: David A. Rosen, Case: 22GDCV00455, Date: 2023-04-07 Tentative Ruling

Case Number: 22GDCV00455    Hearing Date: April 7, 2023    Dept: E

Hearing Date: 04/07/2023 – 10:00am
Case No.  22GDCV00455
Trial Date:   10/30/2023
Case Name: WALA ALI KHALAF, an indiv; v. MERCEDES-BENZ USA, LLC, a Delaware Limited Liability Company, and DOES 1-10

TENTATIVE RULING – MOTION FOR JUDGMENT ON THE PLEADINGS 

 

Moving Party: Defendant, Mercedes-Benz USA LLC (MBUSA or Defendant)

Responding Party: Plaintiff, Wala Ali Khalaf

 

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: Motion; Proposed Order; Gallagher Declaration; Request for Judicial Notice

 

Opposition Papers: Opposition; Jacobson Declaration

 

Reply Papers: Reply

 

RELIEF REQUESTED 
Defendant moves the Court for judgment on the pleadings as to Plaintiff’s first, second, and third causes of action.

 

BACKGROUND
Plaintiff filed a Complaint on 07/26/2022 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.

 

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 alleged it met and conferred. (Decl. Gallagher ¶7.)

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

First Cause of Action – Violation of the Song-Beverly Act – Breach of Express Warranty
As a preliminary matter, the Complaint does not indicate which code section of the Song-Beverly Act the Complaint’s first cause of action is based on. In moving papers, Defendant states that Plaintiff’s express warranty claims is based on a violation of Civil Code §1793.2(d). In Opposition, the Plaintiff does not address this matter. Therefore, the Court will assume the breach of express warranty is premised on Civil Code 1793.2(d).

“If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle.” (Civ. Code §1793.2(d)(2).)

Here, the dispute in this motion pertains to the meaning of “new motor vehicle.”

Under Civil Code 1793.22(e)(2), “new motor vehicle” is defined as:

“New motor vehicle” means a new motor vehicle that is bought or used primarily for personal, family, or household purposes. “New motor vehicle” also means a new motor vehicle with a gross vehicle weight under 10,000 pounds that is bought or used primarily for business purposes by a person, including a partnership, limited liability company, corporation, association, or any other legal entity, to which not more than five motor vehicles are registered in this state. “New motor vehicle” includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation, a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer’s new car warranty but does not include a motorcycle or a motor vehicle which is not registered under the Vehicle Code because it is to be operated or used exclusively off the highways. 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.

 

(Civil Code §1793.22(e)(2).)

 

Moving party argues that Plaintiff leased a used vehicle, and the Song-Beverly Act does not extend to Plaintiff because in Rodriguez v. FCA US, LLC (4th dist-2022) 77 Cal.App.5th 209, the Court of Appeal held that used car purchasers do not receive a new warranty from the distributor/manufacturer defendant in connection with the sale and lack standing to bring claims under the Act. Defendant argues that such rights are only for purchasers of “new motor vehicles” which are defined as brand-new vehicles with new warranties issued in connection with the sale.

 

Plaintiff’s Opposition is difficult to comprehend and poorly written. It is difficult to decipher in Opposition what type of car – whether it is “dealer-owned,” a used vehicle sold with a remainder of a warranty, a demonstrator, etc. – Plaintiff is alleging the Subject Vehicle to be.

 

Both parties argue about whether Rodriguez or Jensen v. BMW (3d dist-1995) 35 Cal. App. 4th 112, is controlling. And both parties argue about what each case held or stood for.

 

If Defendant is correct about what Rodriguez stands for and that it is persuasive or controlling, then Plaintiff does not here sufficiently allege a cause of action for breach of express warranty.

 

Even more importantly, if Plaintiff correctly construes both Rodriguez and Jensen, Plaintiff does not sufficiently allege a cause of action under Plaintiff’s own theories asserted in Opposition.

 

In Opposition, Plaintiff appears to argue in the first paragraph of its Opposition that the Subject Vehicle is a “new dealer-owned.” Presumably, Plaintiff meant to say “new dealer-owned vehicle.” While it’s difficult to tell, Plaintiff also appears to argue that under Jensen this cause of action can be stated if the subject vehicle is a used vehicle sold with a remainder of a warranty because that constitutes a “new motor vehicle”. Nonetheless, for all Plaintiff’s confusing explanations about case law and as to what standard Plaintiff alleges is appropriate here, Plaintiff doesn’t sufficiently allege a cause of action even under its own theories.

 

The Complaint states as follows, “On March 27, 2021, Plaintiff leased a 2021 Mercedes-Benz GLB250W, having VIN No.: W1N4M4GB3MW086856 ("the Subject Vehicle”).” (Compl. ¶8.)

 

Therefore, Plaintiff does not make any of the allegations about the type of vehicle brought up in its own Opposition that it states would be grounds for denying the motion for judgment on the pleadings as to the first cause of action.

 

Thus, under either Rodriguez or Jensen, Plaintiff did not sufficiently allege a cause of action for breach of express warranty.

 

The Court Grants Defendant’s motion as to the first cause of action with 20 days’ leave to amend.

 

Second Cause of Action – Breach of Implied Warranty

Defendant cites the following from Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399:

 

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.” (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 339 [256 Cal. Rptr. 3d 484] (Kiluk), citing § 1795.5; see Kiluk, at p. 337 [Song-Beverly Act “generally binds only distributors and retail sellers in the sale of used goods”].)

 

(Ibid.)

 

Defendant then argues:

 

Here, Plaintiff’s implied warranty claim arises from the lease of the used GLB250W. While Plaintiff alleges that MBUSA is a “manufacturer” and/or “distributor” under the Act, there are no allegations that MBUSA was involved in the lease of the used Subject Vehicle to Plaintiff such that MBUSA sold or distributed the Subject Vehicle, while it was used, to Plaintiff. In fact, the lease contract establishes that the only parties to the transaction were Plaintiff and CalStar Motors, Inc., a completely separate entity from Defendant MBUSA. (Gallagher Decl. ¶ 3; Exhibit A, Complaint ¶ 1, 8; Exhibit B, Lease Contract.) Under the Court of Appeal’s binding decision in Nunez and the plain meaning of the Cal Civ. Code § 1795.5, there was no implied warranty provided by MBUSA to Plaintiff for the GLB250W when she leased it as a used vehicle where MBUSA was not the distributor of the used GLB250W or the retail seller/lessor of the used GLB250W when it was leased to Plaintiff.

 

(Def. Mot. p. 11-12.)

 

The Court notes that Plaintiff’s Complaint alleges, “Defendant, MERCEDES-BENZ USA, LLC, is a "manufacture and/or “distributor" under the Act.” (Compl. ¶21.)

 

Here, what is problematic in evaluating Defendant’s argument is that the argument is based on the assumption that the Subject Vehicle is used. As the Court stated previously, the Plaintiff did not allege whether the instant vehicle is new, used, new dealer-owned, demonstrator, etc.

 

The Opposition on this argument is entirely incomprehensible.

 

Because Defendant’s argument relies on the assumption that the subject vehicle is used and because Plaintiff did not make such allegations in the Complaint, the Court will DENY Defendant’s motion as to this cause of action.

 

However, the Court notes that Defendant is correct to note that the Complaint does not allege who distributed or sold the Subject Vehicle.

 

While Defendant refers to the Lease Contract and notes that the lease establishes that the only parties to the transaction were Plaintiff and CalStar Motors, Inc, a completely separate entity from Defendant, Plaintiff accurately cites Cloud v. Northrop Grumman Corp (1998) 67 Cal.App.4th 995, 999 which states, “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” Therefore, here, the Court did not look outside the pleadings.

 

Third Cause of Action – Violation of Song-Beverly Act Section 1793.2(b).

Civil Code 1793.2(b) states, “Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.”

 

Defendant argues:

 

Plaintiff’s third cause of action seeks damages for a violation of §1793.2(b) which concerns a single repair lasting more than 30 days. (Civ. Code §1793.2(b).) The Ninth Circuit has held that the Act's 30-day requirement applies per repair facility visit. Thus, in order to state a claim under Section 1793.2(b) of the Act, a plaintiff must plead that a single repair attempt took the defendant more than 30 days to complete. (See Schick, 801 F. App'x at 521 [“. . . under any reasonable reading of the statute, § 1793.2(b) requires only that BMW complete any single repair attempt within 30 days.”]; see Ortega v. BMW of N. Am., LLC, No. 2:18-CV-06637-R-SK, 2019 WL 9044692 (C.D. Cal. Oct. 16, 2019) at *4 [finding that more than thirty days between repair attempts for the same defect does not violate Section 1793.2(b) of the Act because a manufacturer violates this provision only when a single repair attempt takes more than thirty days to complete].) Moreover, accumulated repair time, whether for the same issue or different issues, does not trigger protection under subdivision (b) of Section 1793.2 of the Act. (Schick, 801 F. App'x at 521 [holding that because defendant “never took longer than 30 days to complete any single repair attempt, [the Section 1793.2(b)] claim fails as a matter of law”].) Courts throughout California in almost identical cases have agreed with Defendant’s reasoning as set forth above.4

 

4  (See Kodjanian et al v Mercedes-Benz USA, LLC, Case No. 2:21-cv-00836, ECF Dkt 25; DeanAdolph v Mercedes-Benz USA, LLC, Case No. 2:21-cv-00834, ECF Dkt 29; Glover et al v Mercedes-Benz USA, LLC, Case No. 8:21-cv-01969-JDE, ECF Dkt 24; Hashmi v. Mercedes-Benz USA, LLC, Case No.: 2:21-cv-07291-AC (AFMx), ECF Dkt 24; Toobian et al v Mercedes-Benz USA, LLC, Case No. 2:22-cv-07068-AB-AGR, ECF Dkt 19; Binafard v. Mercedes-Benz USA, LLC, Case No. 2:22-cv-07951-AB-PVC, ECF Dkt 19; Abouni v. Mercedes-Benz USA, LLC, Case No. 3:22-cv-01439-JO-JLB, ECF Dkt 19.)

 

(Def. Mot. p.13.)

 

Defendant’s argument appears to be that 30-day requirement applies per repair facility visit and since Plaintiff did not allege that a single repair attempt took the defendant more than 30 days to complete, Plaintiff did not state a cause of action.

 

Problematic with Defendant’s argument is that Defendant does not cite any controlling authority for this Court to rule in Defendant’s favor based on Defendant’s argument.

 

The Opposition does not address this cause of action at all nor does it address this argument.

 

In Reply, Plaintiff states, “Plaintiff failed to even address this point in her Opposition and thus effective concedes that this cause of action is not properly pled and should be dismissed. (CRC Rule 8.54c [a failure to oppose a motion may be deemed a consent to the granting of the motion and leads to the presumption that Plaintiff has no meritorious arguments]; (see Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 489.).” (Reply p. 8.)

 

The Court does not find Defendant’s argument in Reply persuasive because Plaintiff did in fact oppose the motion. Plaintiff just did not address this specific issue in the Opposition. Further, the Court does not find that Defendant met its burden in establishing the argument it was trying to assert.

 

Defendant also argues that “Plaintiff’s Allegations Concerning Recovering of Replacement or Restitution and Related Damages, Including Civil Penalties, Pursuant to Civil Code Section 1793.2(b) Should Be Stricken.” In Reply, Defendant accurately notes that the Opposition did not address this issue, but Defendant did not file a motion to strike; only a Motion for Judgment is before the Court.  “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).)

 

 

TENTATIVE RULING
Defendant’s motion for judgment on the pleadings as to all three causes of action is GRANTED with 20 days’ leave to amend. Lowry v. Port San Luis Harbor District (2d dist., 2020) 56 Cal. App. 5th 211, 221.

 

 

Defendant’s requests for judicial notice are granted.