United States District Court, E.D. California
BEVERLY J. MARSHALL, Plaintiff
FORD MOTOR COMPANY, a Delaware corporation; DECKER FORD, INC., dba Future Ford of Clovis, a California corporation; and DOES 1-30, inclusive, Defendants
ORDER RE: MOTION TO STRIKE
Beverly J. Marshall (“Plaintiff”) purchased a
2012 Ford Focus previously used as a rental car
(“Vehicle”) from Defendant Decker Ford
(“Decker”) on April 19, 2014. The fact that the
Vehicle had been a rental car was not initially disclosed.
Decker informed Plaintiff that the Vehicle had an automatic
transmission. The transmission used was a Dual Power Shift 6
Speed Transmission which is not the same as a more
traditional hydraulic automatic transmission. Defendant Ford
Motor Company (“Ford”) had certified the Vehicle
as being in good condition and provided certain warranties on
it. On May 19, 2014, Plaintiff sent the Vehicle to Ford for
repairs due to issues with the transmission. Ford serviced
the Vehicle and returned it to Plaintiff. On October 23,
2014, Plaintiff again sent the Vehicle to Ford for repairs
due to issues with the transmission. Ford again serviced the
Vehicle and returned it to Plaintiff. In January 2015,
Plaintiff requested that Ford repurchase the Vehicle; Ford
refused to do so.
has filed suit, alleging four causes of action based on
consumer protection laws:
violation of the Song-Beverly Consumer Warranty Act
(“Song-Beverly”) (2) violation of the
Magnuson-Moss Warranty Act (“Magnuson-Moss”), (3)
violation of Business & Professions Code § 17200 et
seq (also knows as the Unfair Competition law,
“UCL”), and (4) violation of the Consumer Legal
Remedies Act (“CLRA”). Doc. 2, Complaint.
Plaintiff asks for punitive damages against Ford. Doc. 2,
has filed an answer. Doc. 17. Ford has filed a motion to
strike, seeking to eliminate the request for punitive
damages. Doc. 12. Plaintiff has not filed any opposition to
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed. Rule Civ. Proc. 12(f). The Ninth Circuit
has stated that “Rule 12(f) does not authorize district
courts to strike claims for damages on the ground that such
claims are precluded as a matter of law.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
974-75 (9th Cir. 2010). Rule 12(f) may not be used to strike
a request for punitive damages. See, e.g. Estate of
Prasad ex rel. Prasad v. County of Sutter, 958 F.Supp.2d
1101, 1128 (E.D. Cal. 2013), Bakersfield Pipe &
Supply, Inc. v. Cornerstone Valve, LLC, 2015 U.S. Dist.
LEXIS 96331, *5 (E.D. Cal. July 23, 2015). The proper vehicle
for challenging the sufficiency of a punitive damages claim
is a motion to dismiss under Rule 12(b)(6), and not a motion
to strike under Rule 12(f). “[W]here a motion is in
substance a Rule 12(b)(6) motion, but is incorrectly
denominated as a Rule 12(f) motion, a court may convert the
improperly designated Rule 12(f) motion into a Rule 12(b)(6)
motion.” Consumer Solutions Reo, LLC v.
Hillery, 658 F.Supp.2d 1002, 1020-21 (N.D. Cal. 2009).
The motion will be considered as though it were brought as a
motion to dismiss for failure to state a claim upon which
relief can be granted.
may be dismissed because of the plaintiff's
“failure to state a claim upon which relief can be
granted.” Fed. Rule Civ. Proc. 12(b)(6). A dismissal
under Rule 12(b)(6) may be based on the lack of a cognizable
legal theory or on the absence of sufficient facts alleged
under a cognizable legal theory. Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011);
Johnson v. Riverside Healthcare Sys., 534 F.3d 1116,
1121 (9th Cir. 2008).
asserts that the first three causes of action do not allow
for punitive damages, while Plaintiff's CLRA claim does
not include such a request. Doc. 12-1, Brief, 2:24-26.
Plaintiff only mentions her request for punitive damages at
the end of her complaint, in the section entitled
“Prayer For Relief”; she does not make clear
which cause or causes of action the request is related to.
See Doc. 2, Complaint.
first cause of action is Song-Beverly. California law permits
the recovery of actual damages plus a civil penalty of up to
two times those actual damages if the Song-Beverly violations
are willful or if a manufacturer breaches an express warranty
by refusing to make restitution after reasonable repair
attempts fail. Cal. Civ. Code § 1794(c) and (e).
Plaintiff has requested this trebling of damages. Doc. 2,
Complaint, 11:13-15. This civil penalty is distinct from
punitive damages under California law; in fact, a plaintiff
may not recover both forms of relief for the same conduct.
Troensegaard v. Silvercrest Indus., 175 Cal.App.3d
218, 228 (Cal.App. 1st Dist. 1985) (“by seeking a
‘civil penalty' and also attorney's fees and
all reasonable expenses as allowed by Civil Code section
1794, plaintiff had in effect elected to waive punitive
damages under section 3294”); Gibson v. Chrysler
Corp., 1998 U.S. Dist. LEXIS 11343, *8 (N.D. Cal. July
20, 1998); Shore v. Gurnett, 122 Cal.App.4th 166,
174 (Cal.App. 1st Dist. 2004). Song-Beverly is not a proper
basis for Plaintiff's request for punitive damages.
second cause of action is Magnuson-Moss, a federal law.
“The Magnuson-Moss Act provides a federal cause of
action for state law express and implied warranty claims.
However, [the Magnuson-Moss Act] does not expand the rights
under those claims, and dismissal of the state law claims
requires the same disposition with respect to an associated
MMWA claim.” In re Sony Grand WEGA KDF-E A10/A20
Series Rear Projection HDTV TV Litig., 758 F.Supp.2d
1077, 1101 (S.D. Cal. 2010), citations omitted. Magnuson-Moss
does not provide an independent basis for grant of punitive
damages. See Kelly v. Fleetwood Enters., 377 F.3d
1034, 1039 (9th Cir. 2004). Magnuson-Moss is not a proper
basis for Plaintiff's request for punitive damages.
third cause of action is UCL. “It is settled law that
punitive damages are not available under § 17200.”
Flo & Eddie v. Sirius Xm Radio, 2016 U.S. Dist.
LEXIS 185233, *5 n.1 (C.D. Cal. Sep. 8, 2016), citing
Korea Supply Co. v. Lockheed Martin Corp., 29
Cal.4th 1134, 1148 (2003). UCL is not a proper basis for
Plaintiff's request for punitive damages.
fourth cause of action is CLRA. This California law does
allow for punitive damages. Plaintiff asserts that
Defendants' various misrepresentations violated Cal. Civ.
Code § 1770(a)(2), (3), (5), (7), (9), (14), and (16).
Doc. 2, Complaint, 15:17-27. As a remedy for CLRA violations,
Cal Civ. Code § 1780(a)(1) provides for actual monetary
damages while Section 1780(a)(2), (3), (4), and (5) provide
for injunctions, restitution, punitive damages, and other
relief respectively. Cal. Civ. Code § 1780(a). Plaintiff
states specifically that she is “not currently seeking
damages under Civil Code § 1780(a)(1)” but rather
is seeking an injunction, restitution, rescission, and