United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS [ECF NO.
Gonzalo P. Curiel United States District Judge
the Court is the Defendant BMW of North America, LLC's
(“BMW” or “Defendant”) motion to
dismiss the first amended complaint (“FAC”). ECF
No. 13. Alex Dakin (“Plaintiff” or
“Dakin”) filed an opposition on October 17, 2019.
ECF No. 14. BMW filed a reply on October 25, 2019. ECF No.
15. For the reasons discussed below the Court
GRANTS BMW's motion to dismiss with
partial leave to amend.
filed the FAC on June 24, 2019. ECF No. 8. Plaintiff alleges
causes of action against BMW for violations of the California
Commercial Code (“Cal. Comm. Code”), the Magnuson
Moss Warranty Act (“MMWA”), and California's
Unfair Competition Law (“UCL”).
is an “ordinary vehicle purchaser” who resides in
San Diego county. FAC ¶¶ 3, 11. BMW is a Delaware
corporation that manufactures and sells motor vehicles, with
its principal place of business in New Jersey. Id.
¶ 4. Plaintiff alleges that he purchased a pre-owned
2012 BMW X-1 equipped with an N20 Engine (the “Subject
Vehicle”) in January 2018. Id. ¶ 9. In
March of 2019, Plaintiff alleges that the Subject Vehicle
experienced “catastrophic engine failure.”
Id. ¶ 10. At this time, the vehicle had 84, 900
miles, and the time period for unilateral express warranty
for the Subject Vehicle had terminated. Id. ¶
10. A BMW service department record stated the following
about the Subject Vehicle: “Engine timing chain module
disintegrated causing motor oil starvation.”
alleges that this “catastrophic engine failure”
was due to the primary chain guide assembly in the Subject
Vehicle's N20 engine, which Plaintiff alleges was
constructed of defective plastic material which caused the
engine to prematurely and catastrophically fail. Id.
¶ 6. The N20 engine's chain guide assembly is made
of “defective polycarbonate composition, which over
time becomes brittle and breaks into tiny pieces.”
Id. These pieces then accumulate and cause the
failure of the oil pump to provide lubricating oil, thereby
causing the engine's failure. Id. According to
the FAC, BMW has known about these issues with the N20 engine
since 2013 and has since redesigned the chain assembly
components to correct these deficiencies in the N20 engine.
Id. ¶ 7.
alleges that BMW intentionally failed to inform Plaintiff
that the Subject Vehicle had this defect that would cause the
engine to prematurely fail and omitted this information from
the owner's manual and warranty and maintenance pamphlet.
Id. ¶¶ 14, 16. Plaintiff further alleges
that BMW refused to replace Plaintiff's engine and as a
result, Plaintiff paid $3, 850 to replace the engine out of
pocket. Id. ¶¶ 14, 15.
Rule of Civil Procedure (“Rule”) 12(b)(6) permits
dismissal for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Dismissal under Rule 12(b)(6) is appropriate where the
complaint lacks a cognizable legal theory or sufficient facts
to support a cognizable legal theory. See Balistreri v.
Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.
1990). Under Rule 8(a)(2), the plaintiff is required only to
set forth a “short and plain statement of the claim
showing that the pleader is entitled to relief, ” and
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
complaint may survive a motion to dismiss only if, taking all
well-pleaded factual allegations as true, it contains enough
facts to “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. “In sum, for a complaint to survive a
motion to dismiss, the non-conclusory factual content, and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief.” Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (quotations omitted). In reviewing a
Rule 12(b)(6) motion, the Court accepts as true all facts
alleged in the complaint, and draws all reasonable inferences
in favor of the plaintiff. al-Kidd v. Ashcroft, 580
F.3d 949, 956 (9th Cir. 2009). The Court evaluates lack of
statutory standing under the Rule 12(b)(6) standard. Maya
v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011).
motion to dismiss is granted, “leave to amend should be
granted ‘unless the court determines that the
allegation of other facts consistent with the challenged
pleading could not possibly cure the deficiency.'”
DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,
658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v.
Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986)). In other words, where leave to amend would be futile,
the Court may deny leave to amend. See Desoto, 957
F.2d at 658; Schreiber, 806 F.2d at 1401.
Implied Warranty of Merchantability
alleges breach of implied warranty of merchantability under
the California Commercial Code, which states that “a
warranty that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant with
respect to goods of that kind” and provides that goods
“to be merchantable must be at least such as . . . fit
for ordinary purposes for which such goods are used.”
Cal. Comm. Code §§ 2314(1)-(2).
California law, a plaintiff alleging a breach of implied
warranty claim must be in vertical privity with the
defendant. SeeClemens v DaimlerChrysler
Corp., 534 F.3d 1017, 1023 (9th Cir. 2008) (consumer who
purchased car from retailer was not in vertical privity with
car manufacturer). “A buyer and seller stand in privity
if they are in adjoining links of the distribution
chain.” Id. Federal courts in this circuit
have declined to create new exceptions to this “tight
vertical privity requirement” because California courts
“have painstakingly established the scope of the
privity requirement . . . and a federal court sitting in
diversity is not free to create new exceptions to it.”
Id. at 1024. “Under California law, action for
breach of implied warranty requires, without exception, that
plaintiff be in vertical privity with defendant.”
Allen v. Hyland's Inc., 300 F.R.D. 643 (C.D.
Cal. 2014). A limited ...