United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
[RE: ECF 9]
LAB SON FREEMAN, UNITED STATES DISTRICT JUDGE
Alison Montgomery, brings this action arising from a lease of
a Ford Escape (the “Vehicle”) on or about
February 17, 2013. Plaintiff alleges two Song-Beverly
Consumer Warranty Act causes of action against Ford Motor
Company (“Ford”): (1) breach of implied warranty
of merchantability and (2) breach of express warranty.
See Compl., ECF 1-2. Before the Court is Ford's
Motion to Dismiss Plaintiff's Complaint under Federal
Rule of Civil Procedure 12(b)(6). Mot., ECF 8. Plaintiff did
not file an opposition to Ford's motion. Pursuant to Civ.
L. R. 7-1(b), the Court finds Ford's unopposed motion
suitable for submission without oral argument and hereby
VACATES the hearing scheduled for March 19, 2020. For reasons
set forth below, the Court GRANTS the motion WITH LEAVE TO
alleges that on or about February 17, 2013, she leased a 2013
Ford Escape Vehicle from an unidentified
“Seller.” Compl. ¶¶ 5-6. In connection
with the lease, Plaintiff received express and implied
warranties. Id. ¶ 8. Under these warranties,
Ford was to maintain “the utility of the Vehicle for
Three (3) years or 36, 000 miles and would conform the
Vehicle to the applicable express warranties.”
Id. Plaintiff complains of the following issues with
the Vehicle: “Recall #13B16, Recall #14W03, Recall
#14804, Recall #14803 for gap handles, Recall #16530 for door
latch, air filter failure, inoperable trunk latch, battery
failure, inoperable panel retainers, inoperable hood, tranny
leak, transmission leaking, stall out issues in two (2)
occasions, and check engine light.” Id. ¶
alleges that she delivered the Vehicle to a Ford
“authorized service and repair facilities, agents
and/or dealers, including Seller, on at least Seven (7)
separate occasions” for repairs. Compl. ¶ 10,
12-13. But the issues were not corrected and
“continue[d] to exist even after a reasonable number of
attempts to repair was given.” Id. ¶ 13.
As a result, Plaintiff brings two causes of action against
ford for breach of implied warranty of merchantability and
breach of express warranty. See Id. ¶¶
15-35. Plaintiff seeks: (1) replacement or restitution (at
Plaintiffs election); (2) incidental damages; (3)
consequential damages; (4) civil penalties in an amount not
to exceed two times the amount of Plaintiffs actual damages;
(5) attorneys' fees and costs; and various other relief.
Id. at 9, Prayer for Relief.
filed her Complaint in the California Superior Court for the
County of Santa Clara on September 9, 2019. Ford removed the
case to this Court on October 28, 2019 pursuant to 28 U.S.C.
§§ 1332, 1441 and 1446, based on diversity of
citizenship. ECF 1.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted ‘tests the legal sufficiency of a
claim.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When
determining whether a claim has been stated, the Court
accepts as true all well-pled factual allegations and
construes them in the light most favorable to the plaintiff.
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681,
690 (9th Cir. 2011). However, the Court need not
“accept as true allegations that contradict matters
properly subject to judicial notice” or
“allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In
re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th
Cir. 2008) (internal quotation marks and citations omitted).
While a complaint need not contain detailed factual
allegations, it “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
the Court grants a motion to dismiss, leave ordinarily must
be granted unless one or more of the following factors is
present: (1) undue delay, (2) bad faith or dilatory motive,
(3) repeated failure to cure deficiencies by amendment, (4)
undue prejudice to the opposing party, and (5) futility of
amendment. Foman v. Davis, 371 U.S. 178, 182 (1962);
see also Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1052 (9th Cir. 2003) (discussing Foman factors).
Claim 1: Breach of Implied Warranty of
argues that Plaintiff's claim for breach of implied
warranty is time-barred. According to Ford, the accrual of a
breach of implied warranty cause of action occurs at the
tender of delivery - in this case on February 17, 2013 - and
thus, the statute of limitations expired on February 17,
2017, more than two years before Plaintiff filed this suit.
Mot. at 4.
statute of limitations in Song-Beverly claims is governed by
two separate time limits. First, “under California
Civil Code § 1791.1(c), implied warranties exist for one
year following the sale of new goods.” Gerstle v.
Am. Honda Motor Co., Inc., No. 16-CV-04384-JST, 2017 WL
2797810, at *11 (N.D. Cal. June 28, 2017) (citation and
alterations omitted). In other words, to state a breach of
implied warranty claim, a plaintiff must allege that the
product was unfit or unmerchantable at the time of sale or
within a year after delivery of the product. Mexia v.
Rinker Boat Co., 174 Cal.App.4th 1297, 1308 (2009).
Second, pursuant to California Commercial Code § 2725,
implied warranty claims must be brought within four years of
the date when the breach occurred. Tanner v. Ford Motor
Co., No. 5:19-CV-02495-EJD, 2019 WL 6269307, at *3 (N.D.
Cal. Nov. 25, 2019) (citation omitted).
Court notes that courts in this district have varying views
on when statute of limitations begins to run on breach of
implied warranty claims. Compare e.g. Tanner, 2019
WL 6269307, at *3 (“California law, […] holds
that the statute of limitations begins to run once a defect
is discovered, not when a product is delivered.”)
with Marcus v. Apple Inc., No. C 14-03824 WHA, 2015
WL 151489, at *8 (N.D. Cal. Jan. 8, 2015) (to “extend
[the discovery rule] to breach of warranty claims ... would
be nonsensical”) and Gerstle, 2017 WL 2797810,
at *12 (same). Under the facts alleged here, however, the
Court need not decide at this time whether the discovery
rule- which postpones accrual of a cause of action until the
plaintiff discovers, or has reason to discover, the cause of
action-is applicable to Song-Beverly implied warranty claims.
This is because Plaintiff has failed to allege whether the
defects she ...