DOLLY M. GEE, District Judge.
Proceedings: IN CHAMBERS-ORDER RE DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE [DOC. # 17]
On April 13, 2012, Plaintiff Ani Avedisian filed the operative first amended class action complaint ("FAC") concerning alleged defects in vehicles manufactured, distributed, and sold by Defendant Mercedes-Benz USA, LLC. [Doc. # 13.] Plaintiff raises causes of action for: (1) violation of the Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750 et seq.; (2) violation of the Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq.; (3) breach of express warranty; (4) breach of implied warranty of merchantability under the Song-Beverly Act, Cal. Civ. Code § 1790 et seq.; and (5) fraud.
On May 11, 2012, Defendant filed a motion to dismiss and/or a motion to strike the class action allegations. Defendant's motion to dismiss is based in part on a factual challenge to Plaintiff's standing. (Mot. at 2.) On November 19, 2012, the Court found that Plaintiff has standing to pursue claims relating to the alleged defects in her vehicle ("11/19/12 Order"). [Doc. # 23.] The Court also notified the parties of its intent to convert Defendant's motion to dismiss to a motion for partial summary judgment as to Plaintiff's claim for breach of express warranty. ( Id. at 2.) The Court granted Plaintiff leave to file a sur-reply as to the issue of whether the alleged defect was covered by the certified pre-owned limited warranty ("CPO warranty"). ( Id. ) Plaintiff declined to do so.
Defendant is the manufacturer, distributor, and seller of Mercedes-Benz vehicles. (FAC ¶ 3.) In May 2009, Plaintiff purchased a certified, pre-owned Mercedes-Benz 2006 CLS500 from Keyes Mercedes in Van Nuys, California. ( Id. ¶ 9, Ex. 5 at 1.) Plaintiff's purchase agreement with Defendant included the CPO warranty, an extension of the vehicle's basic warranty for either one year after the date of purchase or until the vehicle accrued 100, 000 miles. (Request for Judicial Notice in Support of Defendants' Reply Brief, ("Reply RJN") Ex. A [Doc. # 21-1].) ( Id. ) Plaintiff also agreed to a two-year, extended limited warranty ("Extended Warranty") as a part of the purchase, which began coverage one year after the purchase and ran for two years. (Request for Judicial Notice in Support of Defendants' Motion, ("RJN") Ex. B [Doc. # 18-2].)
At various times while using the vehicle, Plaintiff, her husband, and several of her passengers sustained cuts on their arms. (FAC ¶ 8.) These injuries occurred when Plaintiff and her passengers came into contact with the vehicle's chrome plated interior trim pieces, including the shifter, cup holder, and glove compartment. ( Id. ) Plaintiff asserts that this "Chrome Defect" is a result of defective chrome coating which flakes, cracks, and peels, thereby creating sharp edges on the affected pieces. ( Id. ¶ 4.) Plaintiff requested that Defendant repair the Chrome Defect. (FAC ¶ 10.) Defendant declined Plaintiff's request on the basis that the warranty did not cover this defect. ( Id. ) Plaintiff requested the repair within the coverage term of the CPO warranty. ( Id. ) In March 2011, after the CPO warranty had expired, Plaintiff again requested that Defendant repair the Chrome Defect. ( Id. ¶ 11.) Defendant estimated that the cost to replace the cup holder and shifter would be $160.00 and $368.00, respectively, with labor charges of $337.80. ( Id. ) Plaintiff opted to obtain the parts from a third party, spending $109.64 replacing the body hardware, console, front console, and cup holder portion of the chrome plated interior trim. ( Id. ¶ 9.)
Defendant's 2006-2011 model year vehicles are susceptible to the Chrome Defect because the same vendor designed, manufactured, and assembled these models. (FAC ¶¶ 3, 13.) Plaintiff asserts, on information and belief, that Defendant was aware of the Chrome Defect since at least 2003. ( Id. ¶ 14.) Defendant would have learned of the Chrome Defect from pre-release testing data, early consumer and dealer complaints, testing conducted in response to the complaints, aggregate data from dealers, and other internal sources. ( Id. ¶ 15.) Further, Defendant was on notice of the Chrome Defect based on the availability of third-party products designed to remedy the defect. ( Id. ) Defendant neither remedied the defect nor advised consumers about the defect prior to the purchase or lease of affected vehicles. ( Id. ¶ 14.)
MOTION FOR PARTIAL SUMMARY JUDGMENT
A. Legal Standard
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Wash. Mut. Inc. v. United States , 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Partial summary judgment may be sought on any claim or defense, or part thereof, and the court may grant less than all of the relief requested by the motion. See Fed.R.Civ.P. 56(a), (g).
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(c), (e) (1986)); see also Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) ("Rule 56 requires the parties to set out facts they will be able to prove at trial."). "[T]he inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Plaintiff's third cause of action is for breach of express warranty. To prevail on a claim for breach of express warranty under Cal. Com. Code § 2313, a plaintiff must show that "(1) the seller's statements constitute an affirmation of fact or promise' or a description of the goods'; (2) the statement was part of the basis of the bargain'; and (3) the warranty was breached." Weinstat v. Dentsply Int'l, Inc., 180 Cal.App.4th 1213, 1227, 103 Cal.Rptr.3d 614 (2010) (quoting Keith v. Buchanan, 173 Cal.App.3d 13, 20, 220 Cal.Rptr. 392 (1985)).
Plaintiff argues that Defendant breached the CPO warranty by failing to repair the various defective parts. Neither party questions whether the CPO warranty was, in fact, a warranty, so the only element at issue is whether Defendant breached. Defendant contends that the CPO warranty does not cover the parts that Plaintiff paid to replace, and thus Defendant did not breach it.
Examining the warranty language, the Court finds that Defendant is correct. Under the heading "Items Covered Under this Warranty, " the statement "If a Part is Not Listed, It is Not Covered" is printed in bold type before the parts are listed. (CPO Warranty at 9.) The list of items covered by the warranty does not include a shifter, cup holder, glove compartment, body hardware, or console, so none of the items Plaintiffs sought to fix were covered by the CPO warranty. ( Id. at 9-11.) When a ...