Judge: Lee W. Tsao, Case: 22NWCV00791, Date: 2023-05-11 Tentative Ruling

Case Number: 22NWCV00791    Hearing Date: May 11, 2023    Dept: C

DELGADO v. FORD MOTOR COMPANY

CASE NO.:  22NWCV00791

HEARING:  05/11/23

#2

TENTATIVE ORDER

Defendant FORD MOTOR COMPANY’s Motion for Judgment on the Pleadings is GRANTED with 30 days leave to amend.

Moving Party to give Notice.

No Reply filed as of May 9, 2023.

A motion for judgment on the pleadings has the same function as a general demurrer, and the rules governing demurrers apply.

This “lemon law” action was filed by Plaintiff CHRISTIAN DELGADO (“Plaintiff”) on September 1, 2022. On September 20, 2022, the operative First Amended Complaint (“FAC”) was filed.

The FAC alleges, in pertinent part, “On January 6, 2022, Plaintiff purchased a 2018 Ford Mustang….” (FAC ¶5.) “Each time Plaintiff delivered the nonconforming Vehicle to Defendants’ authorized service and repair facility, Defendants, and each of them, represented to Plaintiff that they could and would conform the Vehicle to the applicable warranties, that in fact they did conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments, and/or nonconformities have been repaired; however, Defendants… failed to conform the Vehicle to the applicable warranties because said defects, malfunctions, misadjustments, and/or nonconformities continue to exist even after a reasonable number of attempts to repair was given.” (FAC ¶13.)

The FAC asserts the following causes of action: (1) Breach of Implied Warranty of Merchantability (Song-Beverly Act); (2) Breach of Express Warranty (Song-Beverly Act); and (3) Violation of the Magnusson-Moss Consumer Warranty Act.

Defendant FORD MOTOR COMPANY (“Defendant”) moves for judgment on the pleadings as to of Plaintiff’s First, Second, and third Causes of Action. Defendant argues that Plaintiff bought a used 2018 Ford Mustang from an unidentified dealer, and that Defendant did not issue any warranties in connection with the sale of the Subject Vehicle as a used vehicle sold by the unidentified dealer.

The recent decision from the Fourth District, Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez) holds that the Song-Beverly Consumer Warranty Act does not apply to used vehicles sold with a balance remaining on the manufacturer’s express warranty. (Id. at 225.)  “Though we think Jensen was correctly decided, we agree with Dagher that its statement about ‘the Act’s coverage for subsequent purchasers of vehicles with a balance remaining on the express warranty, must be read in light of the facts then before the court, and are limited in that respect.’ [Citation.] Given that those facts included a car leased with a full manufacturer’s warranty issued by the manufacturer’s representative, the court was not asked to decide whether a used car with an unexpired warranty sold by a third party reseller qualifies as a ‘new motor vehicle.’” (Id. at 224.) Rodriguez is, however, pending before our Supreme Court and thus constitutes only persuasive authority and “has no binding or precedential effect.” (CRC Rule 8.1115(e)(1).)

This Court finds Rodriguez to be persuasive, given the facts of the instant case. Here, Plaintiff does not allege or argue that Defendant issued a new or full express warranty with the vehicle at the time of sale to the plaintiff.

In Opposition, Plaintiff urges this Court to follow the binding authority of Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. However, as indicated above, Jensen is distinguishable. In Jensen, the manufacturer-affiliated dealer issued a new car warranty with the plaintiff’s lease. (Id. at 119.) Those facts are not alleged here.

Accordingly, pursuant to Rodriguez, judgment on the pleadings is properly GRANTED.

Breach of Implied Warranty of Merchantability under Song-Beverly and Breach of Implied Warranty under MMWA

Judgment on the pleadings is also properly GRANTED as to Plaintiff’s claims for violations of implied warranties. Defendant was not a distributor of the Subject Vehicle and was not involved in the sale at issue. “[O]nly distributors or sellers

of used goods—not manufacturers of new goods—have implied warranty obligations in the sale of used goods.” (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399-400.) 

In the interests of justice, 30 days leave to amend is GRANTED. (See CCP §438(h)(2).)