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Durkee v. Ford Motor Co.

United States District Court, N.D. California

August 7, 2014



PHYLLIS J. HAMILTON, District Judge.

Defendant's special motion to strike the complaint pursuant to California Code of Civil Procedure § 425.16 came on for hearing before this court on July 30, 2014. Plaintiffs Michael Durkee and Leslie Durkee appeared by their counsel Richard Wirtz, and defendant Ford Motor Company ("Ford") appeared by its counsel Frank Kelly and Amir Nassihi. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby DENIES the motion.


In 2004, plaintiff Michael Durkee purchased a 2005 model year F-250 Super-Duty Turbo Diesel Engine Truck from Ford of Marin for a total sales price of over $60, 000. After encountering "consistent and substantial problems, " plaintiffs sought repurchase or replacement from Ford.[1] Ford offered to repurchase or replace the truck in a letter that included a "wear and use" evaluator.[2] The gist of the letter was that if plaintiffs accepted Ford's offer, the final amount would depend on the condition of the vehicle.

Plaintiffs first selected a replacement truck. However, they were informed by Ford that they would be required to pay nearly $10, 000 in repairs (to bring their truck into a certain condition) before Ford would carry through on its obligation to replace or repurchase the truck. Id . This was confirmed in a "Reacquired Vehicle Inspection/Condition Report" prepared by Ford's representative and agent. Plaintiffs allege that Ford's Replacement/Repurchase offer letter is "conspicuously absent of accurate information." They claim that the letter is a "form letter" which was sent out to all members of the proposed class.

Plaintiffs assert that Ford's Replacement/Repurchase letter misrepresented that a replacement vehicle is one that is of equal or greater value (the consumer having to pay the difference in a greater value) rather than the statutory requirement that the replacement vehicle be "substantially identical;" misrepresented that the consumer must pay for "vehicle upgrade" charges; and misrepresented that Ford is entitled to abnormal wear and tear on repurchased vehicles. They also allege that Ford failed to inform consumers how any mileage offsets will be calculated, and also failed to inform them that Ford is required by the Song-Beverly Act to pay for certain damages (e.g., "incidental and consequential damages").

Plaintiffs filed the present action on February 10, 2014, alleging violation of the Song-Beverly Consumer Warranty Act ("Song-Beverly Act"), Cal. Civ. Code § 1790, et seq.; unlawful, unfair, and fraudulent business practices, in violation of Business & Professions Code § 17200; violation of the Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code § 1750, et seq.; and a claim for declaratory relief. The complaint was filed as a proposed class action, and plaintiffs assert diversity jurisdiction pursuant to CAFA.

On April 10, 2014, approximately 60 days after the complaint was filed, Ford filed the present motion for an order striking the FAC pursuant to California's anti-SLAPP statute, Cal. Civ. P. Code § 425.16.


A. Legal Standard

Under California law, Strategic Litigation Against Public Participation (SLAPP) suits masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so. Cal. Civ. P. Code § 425.16.

California's anti-SLAPP statute authorizes the filing of a "special motion to strike" any "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution... in connection with a public issue." Cal. Civ. P. Code § 425.16(b)(1); Flatley v. Mauro , 39 Cal.4th 299, 311-12 (2006). Acts in furtherance of the right of petition include "any written or oral statement or writing made in connection with an issue under consideration or review by a... judicial body." Id . § 425.16(e)(2). The special motion "may be filed within 60 days of the service of the complaint, or, in the court's discretion, at any later time upon terms it deems proper." Cal. Civ. P. Code § 425.16(f).

An anti-SLAPP motion is available to defendants in federal court. See Thomas v. Fry's Elecs., Inc. , 400 F.3d 1206, 1206-07 (9th Cir. 2005) (per curiam); see also Graham-Sult v. Clainos, __ F.3d __, 2014 WL 444153, at *4 (9th Cir. Feb. 5, 2014). The statute is to be interpreted broadly. See, e.g., Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. ("GLAAD") , 742 F.3d 414, 421-22 (9th Cir. 2014); Tuck Beckstoffer Wines LLC v. Ultimate Distributors, Inc. , 682 F.Supp.2d 1003, 1008-09 (N.D. Cal. 2010).

In determining whether an action must be stricken under the anti-SLAPP statute, the court engages in a two-step inquiry. GLAAD , 742 F.3d at 422 (citing Navellier v. Sletten , 29 Cal.4th 82, 88 (2002)). First, the court asks whether the defendant has made a prima facie showing that the plaintiff's cause of action arises from conduct in furtherance of the exercise of the defendant's constitutional right of petition or right of free speech in connection with an issue of public interest. Id . Second, if the defendant makes this ...

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