United States District Court, C.D. California
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District
(In Chambers): ORDER RE: PLAINTIFF'S MOTION TO
REMAND THIS ACTION TO STATE COURT ; AND DEFENDANT'S
MOTION TO DISMISS CORRECTED SECOND AMENDED COMPLAINT 
the Court are two motions:
first is Plaintiff Tristram Buckley's Motion to Remand
this Action to State Court, (“Motion to Remand”),
filed on July 25, 2019. (Docket No. 24). Defendant BMW North
America (“BMW NA”) filed an Opposition on August
16, 2019. (Docket No. 26). Plaintiff filed a Reply on August
28, 2019. (Docket. No. 28).
second is BMW NA's Motion to Dismiss the Corrected Second
Amended Complaint (“Motion to Dismiss”), filed on
May 20, 2019. (Docket. No. 16). Plaintiff filed an Opposition
on July 8, 2019. (Docket. No. 20). BMW NA filed a Reply on
July 15, 2019. (Docket No. 22).
Motion to Remand was noticed to be heard on September 9,
2019. The Motion to Dismiss was noticed to be heard on July
29, 2019, after a joint request to continue the hearing's
original date of July 1, 2019. The Court read and considered
the papers on both Motions and deemed the matters appropriate
for decisions without oral argument. See Fed. R.
Civ. P. 78(b); Local Rule 7-15. The hearings were therefore
VACATED and removed from the Court's
Court has read and considered the papers filed on the
motions, and rules as follows:
. Plaintiffs Motion to Remand is
DENIED because (1) BMW NA has established
that complete diversity of citizenship exists; and (2)
Plaintiff waived BMW NA's alleged failure to comply with
the unanimity rule by not raising the procedural defect
within the requisite 30-day period.
. BMW NA's Motion to Dismiss is
GRANTED in part and DENIED
in part as moot as follows:
o GRANTED with leave to amend as to
Plaintiffs misrepresentation fraud claims in Plaintiffs first
and third causes of action because Plaintiff has failed to
state with particularity the circumstances constituting the
o GRANTED without leave to amend as
to Plaintiffs breach of express warranty claims in Plaintiffs
fifth and sixth causes of action because Plaintiff has
withdrawn those claims.
o GRANTED with leave to amend as to
Plaintiffs breach of implied warranty of merchantability
under the Song-Beverly Act in Plaintiffs seventh cause of
action because, as Plaintiff concedes, he failed to
adequately state a claim.
o GRANTED with leave to amend as to
Plaintiffs Magnuson-Moss Warranty Act claim in Plaintiffs
fourth cause of action because Plaintiff has failed to plead
a breach of warranty claim under state law.
o DENIED as moot as to Plaintiffs
request for equitable relief because the Court has dismissed
all of Plaintiff s claims against BMW NA.
o DENIED as moot as to BMW NA's
request to dismiss Plaintiff's claims on Rule 8(a)(2)
grounds because the Court has dismissed all of
Plaintiff's claims against BMW NA on alternative grounds.
Tristram Buckley, an attorney representing himself, commenced
this action on October 23, 2018 in the Superior Court of
California, County of Los Angeles. (Ex. A to Mot. to Dismiss
(First Compl.) (Docket No. 1-1)). Plaintiff brought the
action against BMW NA, Bayerische Motoren Werke
Aktiengesellschaft (“BMW AG”), multiple BMW
dealerships, and four individual sales agents employed by the
dealerships. BMW NA is currently the only defendant
participating in the action. While the action was pending in
state court, Plaintiff filed a First Amended Complaint and
served that complaint on BMW NA. (Ex. B. to Mot. to Dismiss
(First Am. Compl.) (Docket No. 1-2)). On February 20, 2019,
Defendant removed the action under the Court's diversity
jurisdiction. (See Not. of Removal (Docket No. 1)).
removal, Plaintiff filed a Second Amended Complaint on April
29, 2019 (Docket No. 13) and then a Corrected Second Amended
Complaint (“CSAC”) on May 6, 2019 (Docket. No.
brings the following claims against BMW NA: (1) fraud and
fraudulent inducement (first cause of action); (2) violation
of California's Consumer Legal Remedies Act
(“CLRA”) and Unfair Competition Law
(“UCL”) (third cause of action); (4) violation of
the Magnuson-Moss Warranty Act (fourth cause of action); and
(5) breach of implied warranty of merchantability under the
Song-Beverly Act (seventh cause of action). (CSAC
¶¶ 373-287). Plaintiff's claims stem from
allegations that several misrepresentations and omissions
were made to him before he purchased two used BMW vehicles-a
Z4 and Z8-that contained multiple defects.
following facts are based on the CSAC, which the Court
assumes are true and construes any inferences arising from
those facts in the light most favorable to Plaintiff.
See, e.g., Schueneman v. Arena Pharm., Inc., 840
F.3d 698, 704 (9th Cir. 2016) (restating the
generally-accepted principle that “[o]rdinarily, when
we review a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), we accept a plaintiffs allegations as
true ‘and construe them in the light most
favorable' to the plaintiff ….”) (quoting
Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981,
989 (9th Cir. 2009)).
CSAC's failure to comply with Rule 8(a)(2), as discussed
below, makes it difficult to discern the precise nature of
Plaintiff s factual allegations. For instance, the CSAC
frequently uses the term “Defendants” without
articulating which defendant engaged in the alleged conduct.
Additionally, the CSAC at times uses the term
“BMW” to refer to a defendant without specifying
which BMW defendant. As a result, any references to
Defendants collectively or BMW below reflect Plaintiffs use
of those terms in the CSAC.
Plaintiffs Purchase of the Z4.
purchased a Z4 from a BMW dealership, Defendant South Shore
BMW. (CSAC ¶¶ 24, 217). Plaintiff was provided a
90-day written warranty for the vehicle. (Id.). The
CSAC does not state where South Shore BMW is located but
implies that the dealership is not located in California.
(See Id. ¶¶ 284, 332-33).
contained five specific defects that were not communicated to
Plaintiff: (1) defective wheels; (2) defective climate
control system; (3) defective leather dashboard; (4)
defective paint (the car had been repainted since leaving the
factory); and (5) flood damage. (Id. ¶¶ 7,
communicated with sales agents Defendants Sota Sokol and Alan
Zaidan about the Z4. (Id. ¶ 220). These agents
told Plaintiff the Z4 contained no defects. (Id.
¶¶ 221-22). Specifically, they represented that the
dashboard was not defective, and the paint was all original.
(Id.) The agents also failed to disclose that the Z4
had signs of flood damage. (Id. ¶ 229).
Additionally, the agents failed to disclose the class action
lawsuit regarding the defective wheels and affirmatively
represented that the tires had been replaced in the last
week. (Id. ¶¶ 243, 261).
also contacted BMW NA by telephone to inquire about the
vehicle's history and BMW NA failed to disclose any
defects. (Id. ¶ 7).
alleges the following defects:
wheels were defective because manufacturing
defects impacted the wheels' strength, durability, and
integrity, causing these types of wheels to crack in as few
as 10, 000 miles. (Id. ¶¶ 51-52). All the
Defendants knew about the defective wheels. (Id.
¶¶ 51-60). Plaintiff was drawn to these wheels due
to BMW NA's marketing materials, including a brochure
titled “The BMW Z4 Roadster, Outrun the Ordinary,
” which stated that the wheels at issue were an option
high performance upgrade that increased the car's maximum
speed limit. (Id. ¶¶ 53, 218, 254). BMW NA
and BMW AG knew the wheels were defective on these cars
because BMW NA and BMW AG redesigned the wheels to fix the
structural defects but did so covertly by not changing the
part number for the wheel or its outward appearance so
consumers would not know about the changes. (Id.)
Additionally, the defective wheels were the subject of a
class action. (Id. ¶ 61). Plaintiff asserts
that he was not a party to that class action (Id.
¶ 99) without explaining why. Additionally, the tires
were not new as promised, but were instead many years old.
(Id. ¶¶ 261-68).
complained to BMW regarding the defective wheels.
(Id. ¶¶ 61-62). But, despite being under
warranty, BMW failed to disclose that the wheels were
defective and failed to replace them. (Id.).
defective climate control system would blow hot
air even if the climate control system was off, which
required Plaintiff to use his air conditioning system
constantly while driving. (Id. ¶¶ 43-50).
Engaging the air conditioning system typically decreases fuel
economy by 25%. (Id. ¶ 47). Defendants failed
to disclose this defect when Plaintiff asked the BMW dealer
and BMW NA regarding the Z4's prior defects. (Id.
¶ 50). Plaintiff asserts that BMW NA and BMW AG
knew about the defective climate control system (Id.
¶ 43) but does not provide a basis for that belief.
leather dashboard was defective because the
leather would shrink and pull up causing bubbles to form in
the dashboard. (Id. ¶¶ 101-05). This
defect caused dangerous reflections in the windshield.
(Id. ¶ 104). BMW NA and BMW AG were also aware
of this defective condition because it was discussed on
internet forums. (Id. ¶ 117). Additionally, BMW
issued a service bulletin advising dealers not to replace the
defective dashboards because it was too costly. (Id.
expressly asked about this potential dashboard defect when
purchasing the Z4 and Defendants expressly stated that there
were no defects. (Id. ¶¶ 107-112). Prior
to purchasing the Z4, Plaintiff asked for a photograph of the
dashboard and Defendants sent a photograph that, upon further
examination, intentionally concealed the damage.
(Id. ¶¶ 299-300). Upon delivery of the
vehicle, Plaintiff immediately advised Defendants of this
defect and Defendants responded by saying that the defect had
arisen after Plaintiff took possession of the vehicle.
(Id. ¶¶ 112-13).
paint, upon delivery, had substantial and
significant defects, which were readily visible and confirmed
by individuals in the vehicle painting industry.
(Id. ¶¶ 168-69, 175-76, 304-07).
expressly asked whether there had been any paintwork done and
Defendants at the BMW dealership responded by stating that
the paintwork was all original. (Id. ¶¶
141, 164-65). BMW NA also failed to disclose any paintwork
history when Plaintiff inquired about the Z4's history.
(Id. ¶ 166). The BMW factory paint ...