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Buckley v. BMW North America

United States District Court, C.D. California

December 2, 2019

BMW North America, et al.

          Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge



         Before the Court are two motions:

         The 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).

         The 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).

         The 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 calendar.

         The 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 alleged fraud.
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as to Plaintiffs breach of express warranty claims in Plaintiffs fifth and sixth causes of action because Plaintiff has withdrawn those claims.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.

         I. BACKGROUND

         Plaintiff 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)).

         After 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. 14).

         Plaintiff 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.

         The 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)).

         The 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.

         A. Plaintiffs Purchase of the Z4.

         Plaintiff 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).

         The Z4 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, 25-30).

         Plaintiff 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).

         Plaintiff also contacted BMW NA by telephone to inquire about the vehicle's history and BMW NA failed to disclose any defects. (Id. ¶ 7).

         Plaintiff alleges the following defects:

         The 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).

         Plaintiff 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.).

         The 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.

         The 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. ¶ 103).

         Plaintiff 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).

         The 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).

         Plaintiff 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. ΒΆ 166). The BMW factory paint ...

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