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Durkee v. Ford Motor Co.

United States District Court, N.D. California

December 24, 2014

MICHAEL DURKEE, et al., Plaintiffs,


PHYLLIS J. HAMILTON, District Judge.

Defendant's motion to dismiss the first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim came on for hearing before this court on December 10, 2014. Plaintiffs appeared by their counsel Richard Wirtz, and defendant appeared by its counsel Frank Kelly, Amir Nassihi, and Kevin Underhill. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion.


Plaintiffs Michael Durkee and Leslie Durkee allege that Michael Durkee purchased a 2005 Ford F-250 truck from Ford of Marin on July 28, 2005, for $61, 707.20. The original owner of the truck had purchased it on September 17, 2004. The five-year express warranty began to run as of that date.

In late 2012 or early 2013, well after the five-year warranty had expired, plaintiffs contacted defendant Ford Motor Corp. ("Ford") with a demand that Ford repair or replace the truck under the "Lemon Law" provisions of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq. ("Song-Beverly Act"). Ford responded with a letter offering either a replacement or a refund. The letter also stated that plaintiffs would be responsible for "missing equipment, abnormal wear or damages evident on [the] vehicle (i.e., worn tires, missing radio, cracked windshield)" and that "[a]ny missing equipment, abnormal wear, or damage must be corrected prior to completing of the reacquired vehicle transaction."

Plaintiffs selected the "Replacement Transaction" option, and indicated that the mileage of the truck was 111, 795. At that point the truck was over eight years old and had sustained serious body damage. After inspecting the vehicle in March 2013, Ford informed plaintiffs that they would be responsible for paying more than $10, 000 for repairs before Ford would complete the transaction.

On February 10, 2014, plaintiffs filed the original complaint in the present action as a proposed class action, asserting causes of action under the Song-Beverly Act; the Unfair Competition Law ("UCL"), California Business & Professions Code § 17200; and the Consumer Legal Remedies Act ("CLRA"), California Civil Code § 1770, et seq.; plus a claim for declaratory relief, seeking a determination of their rights and obligations, and Ford's responsibilities and liabilities under the Song-Beverly Act.

Attached to the complaint were two exhibits - a copy of the letter from Ford to Michael Durkee, bearing a fax date of January 30, 2012, offering a replacement or a refund, and stating that he would be responsible for "any missing equipment, abnormal wear or damages evident on [the] vehicle...;" and a copy of the "Reacquired Vehicle Inspection/Condition Report" completed by the Ford dealer, dated March 14, 2013; showing 112, 699 miles; stating that the truck had "more than $10, 000 in damages" and "needs entire new body;" indicating that "every part of vehicle is damaged" and the spare and RR tire were bald; and noting "major body damage, " "major dents, " and "deep scratches, " and that the tailgate was missing.

The gist of the complaint was that Ford violated the Song-Beverly Act by failing to provide plaintiffs with a "substantially identical" replacement vehicle, and by demanding that plaintiffs pay over $10, 000 in repairs before it would replace the truck, and that Ford fraudulently represented that it was entitled to impose that condition before it was required to replace the truck.

Ford moved to dismiss the complaint for failure to state a claim. In an order issued September 2, 2014, the court granted the motion, and dismissed the UCL and CLRA claims without leave to amend. In addition, the court held that the complaint failed to state a claim for violation of the Song-Beverly Act because plaintiffs had failed to plead fraud with particularity (to the extent they were alleging fraud) and had failed to allege facts supporting the elements of the claim. Because the Song-Beverly Act claim was so deficiently pled, the court did not address Ford's argument that plaintiffs' claim was based on an incorrect interpretation of the Act. The court granted leave to amend as to the Song-Beverly Act claim.

Plaintiffs filed the first amended complaint ("FAC") on September 30, 2014. The FAC is identical to the original with four exceptions. First, the allegations in the Song-Beverly Act cause of action are the same except that "Plaintiff" has been changed to the plural.[1] See FAC ¶¶ 35-55. Second, plaintiffs have deleted references to the UCL and CLRA, based on the dismissal of those causes of action. Third, plaintiffs have replaced the former ¶ 11 with six new or amended paragraphs. See FAC ¶¶ 11-16. Most of these relate to the truck's repair history between 2004 and 2012, including six "engine-related repairs" between 2005 and 2009. See FAC ¶¶ 11-14. Fourth, there is an additional exhibit attached to the FAC - a copy of a document entitled "Warranty History, " which plaintiffs claim to have received from Ford on January 21, 2013.

It is this "Warranty History" that provides the basis for the allegations relating to the truck's repair history in FAC ¶¶ 12-14. The Warranty History shows that prior to Michael Durkee's purchase of the truck on July 28, 2005, the first owner presented it to the dealer on July 5, 2005, for repair of an engine oil leak. FAC ¶ 12.

On September 23, 2005, approximately two months after they purchased the truck, plaintiffs present the truck for repair of an "apparent overheating problem." FAC ¶ 13(a). The overheating was located in or on the battery. The battery cable, battery, and starter (which was defective) were replaced. FAC Exh. 1, at 1. The Warranty History reflects nothing other than routine maintenance for the next two-and-a-half years.

On March 29, 2007, plaintiffs took the truck in for repairs because of an apparent leak of power-steering fluid. FAC ¶ 13(b). The leak appeared to come from behind the master cylinder. The booster was replaced and the reservoir refilled. FAC Exh. 1, at 2. The Warranty History reflects nothing other than routine maintenance for the following 13 months.

On May 19, 2008, "[t]he engine overheated and was smoking, lacked power, and had to be towed in, " a problem plaintiffs allege was "related to the engine's EGR [exhaust gas recirculation] valve." FAC ¶ 13(c). The ...

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