Judge: Mark H. Epstein, Case: 20STCV016594, Date: 2022-12-19 Tentative Ruling

Case Number: 20STCV016594    Hearing Date: December 19, 2022    Dept: R

The matter is here for two reasons: (1) the ex parte filed 12/15/22 and (2) Amazon.com’s motion for summary adjudication of issues.

Turning first to the ex parte.  The court is inclined to continue the trial to allow trial counsel to participate in a previously scheduled trial.  The court asked the parties to see if they could agree upon a new date in the April time frame.  If they have done so, the court will attempt to accommodate it.  If not, the court will discuss an appropriate date.

As to discovery, the court is where it was earlier.  The discovery cut off and motion cut off is not extended except for discovery that was properly propounded or at least “on the table” (meaning that the discovery had been identified prior to the ex parte application and the time to serve it had not expired).  As to that discovery, the court’s inclination is to allow it to be completed according to the new trial date, including motions to compel or the like.  That order is without prejudice to a motion to re-open discovery for a limited purpose upon a showing of diligence and good cause.  The court is mindful of the fact that this case has been pending for 2.5 years (although that was during COVID) and that plaintiff has stated that she was trial ready as of Spring 2022 and objected to lengthy continuances when the defense requested them due to the need to get to trial quickly.  The court is also of the view that a general re-opening of discovery will likely lead to more motions but will not move the proverbial ball forward.

With that, the court turns to the motion at hand.  The first issue is really a legal one, or at least largely a legal one, and that is whether privity is required to assert a breach of the implied warranty cause of action, meaning (according to Amazon.com) that Amazon.com must have been the seller, which in turn means (according to Amazon.com) that legal title over the goods had passed from Onyx to it.  Plaintiffs contend that the issue is controlled by Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431.  Amazon.com claims in reply (for Amazon.com did not cite to the case in its moving papers) that Bolger is off point because it deals with strict products liability, not breach of the implied warranty.  Thus, Amazon.com argues, whatever force Bolger has is limited to a cause of action not at issue in this motion.  Although plaintiff has not had an opportunity to respond to the reply, the court presumes that plaintiff will argue that Bolger’s logic dictates that the same analysis applies. 

The court will hear argument on the question.  On the one hand, the court is aware that the implied warranty cause of action is a doctrine imposed by law generally as between two parties to a sale born out of contract theory.  The “seller” impliedly warrants the product to the buyer.  As such, the argument goes, only the seller can be liable for the implied warranty; a third party not in privity with the sale contract warrants nothing.  On the other hand, the world has changed since the doctrine was first established.  Many of Amazon.com’s attributes as discussed in Bolger would apply with equal force and logic to the implied warranty context as they would to the strict liability context.  Indeed, the court is a bit hard-pressed to consider why that would not be the case.  (The Bolger Court dealt with the warranty theory in a footnote, essentially stating that plaintiff had abandoned it.  Thus, the court never addressed whether its reasoning would also apply in that context.)

The court is also uncertain as to the UCL cause of action for injunctive relief (the parties agree that restitution is not available because Amazon.com gave plaintiff her money back).  UCL case law makes it clear that the injunction it authorizes is a unique construct of California law.  It is not the typical injunction designed to prevent one party to a case from harming the other party to the case in the future.  Rather, it is a broader remedy designed to protect the public at large from suffering the same harm already suffered by the plaintiff.  Along those lines, due to the UCL’s unusual remedy, the injunction might well not lie.  That said, however, whether or not to grant such an injunction lies in the court’s discretion.  Where, as here, there is a class action pending, it might well be said that the other case is the superior one to try that issue.  (The court will inquire as to whether there is a 17200 cause of action there.)  After all, the public injunction remedy is akin to one where the plaintiff in the instant case is in a sort of representative capacity.  The other case, where the plaintiff is an actual and formal representative, might be the better vehicle.  And plainly there is no benefit to having two injunctions.  The court will discuss that issue as well.

And finally, there is plaintiff’s request for a continuance to conduct additional discovery.  As the court stated at the last hearing, plaintiff will need to show two things: (1) that the evidence it seeks will or could be dispositive in defeating the motion; and (2) that plaintiff was diligent in seeking it.  As to the first, Amazon.com argues that the evidence in question goes to information Amazon.com got after plaintiff here purchased the product.  If that is the case, it is hard to see how that evidence will establish that Amazon.com had exclusive knowledge that it did not share or concealed information from plaintiff.  Nor would it be relevant to punitive damages really, as even if Amazon.com later learned about facts and took no action, it is not clear to the court that punitive damages are available to punish defendant for something that the defendant had not yet done at the time of the tort.

The court is not necessarily prepared to give a definite ruling today.  It may seek further briefing or take the matter under submission at the close of the hearing.