United States District Court, N.D. California, San Jose Division
WAYNE W. YETTER, Plaintiff,
FORD MOTOR COMPANY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON
THE PLEADINGS WITH PREJUDICE RE: DKT. NO. 38
H. KOH United States District Judge
Wayne Yetter (“Plaintiff”) brings suit against
Defendant Ford Motor Company (“Defendant”) for
claims arising from Plaintiff's purchase of a vehicle
manufactured by Defendant. Before the Court is
Defendant's motion for judgment on the pleadings. Having
considered the parties' submissions, the relevant law,
and the record in this case, the Court GRANTS Defendant's
motion for judgment on the pleadings with prejudice.
resides in Salinas, California. ECF No. 37 ¶ 2
(“First Amended Complaint” or “FAC”).
Defendant Ford is a vehicle manufacturer incorporated in
Delaware. Id. ¶ 3. On June 30, 2008, Plaintiff
purchased a new 2008 Ford Super Duty F-350 truck from Salinas
Valley Ford, an authorized dealer of Defendant's
vehicles. Id. ¶¶ 9, 56. Plaintiff paid
$56, 673.20 for the vehicle. ECF No. 37-1 at 2.
alleges that the vehicle that Defendant manufactured and that
Plaintiff purchased contains a defective engine. FAC
¶¶ 10, 13. Navistar supplied a 6.4 liter engine for
Ford's Super Duty trucks for model year 2008 to 2010.
Id. ¶ 15. Ford claimed that the 6.4 liter
engine “had ‘been tested the equivalent of 10
million miles on road and in the lab, helping ensure
excellent long-term durability.'” Id.
Nonetheless, Plaintiff alleges that the 6.4 liter engine
(“6.4L Engine”) “is plagued by numerous
problems and safety concerns.” Id. ¶ 17.
For example, the engine loses power while in operation and is
subject to overheating. Id. ¶ 19. Other defects
“result in premature engine failure and require
expensive repairs, including premature engine
replacement.” Id. ¶ 20.
alleges that Ford alerted automotive technicians about
“several defects common to the 6.4L Engine.”
Id. ¶ 29. Ford also issued two different recall
notices in March 26, 2007 for Super Duty trucks for other
defects not related to the engine, including an
“excessive temperature defect” and a
“wiring defect.” Id. ¶ 30. However,
Ford has never developed a plan to identify and eliminate
“the root cause of defects to the 6.4L Engines, ”
nor has Ford implemented a recall of the engines.
Id. ¶ 46. Instead, Ford instructed its dealers
to undertake repairs that “misled customers to believe
that the underlying problem had been fixed, when in fact the
symptom likely would reoccur on a later date.”
Id. ¶ 47.
read promotional materials and viewed Ford advertisements
that represented that the Super Duty F-350 had
“best-in-class rated towing power and engine
reliability.” Id. ¶¶ 53-54.
Specifically, at the authorized Ford dealership on the day of
Plaintiff's purchase of the vehicle, a salesperson
provided Plaintiff with a marketing brochure for the Ford
2008 F-350, which Plaintiff reviewed. Id. ¶ 53.
The marketing brochure represented that the 6.4L Engine has
“[h]igh-pressure common-rail fuel injection hels [sic]
[that] deliver 100% of its 650 lb.-ft of torque (80 lb.-ft.
more than 2007) at just 2000 rpm.” Id. ¶
142(a). The brochure also noted that the 6.4L Engine had
“cast-iron block, heads, and bedplate;” a
“bigger crankshaft;” “powder-forged
connecting rods;” and “oil-jet piston
cooling.” Id. ¶ 142(b)-(e). Plaintiff
alleges that “the Vehicle as delivered to Plaintiff had
an unreliable, underperforming engine prone to overheating
and failure of multiple systems, from the cooling system to
the electrical system, ” but Plaintiff never alleges
how any of the representations in the brochure are false.
Id. ¶ 143.
according to Plaintiff, a salesperson at Salinas Valley Ford
“verbally represented to Plaintiff that the Super Duty
F-350 was better and improved over prior Ford models, and
specifically, that the new 6.4L Engine was a newly designed
higher performing and better engine than the previous 6.0
Liter PowerStroke Engine.” Id. ¶ 56.
“[W]hen asked how the 2008 F-350 would perform in
comparison with Plaintiff's prior 1996 Ford truck[, ] the
salesperson represented that the ‘2008 F-350 is a
better truck with better performance; guaranteed'”
and that “the 2008 F-350 had superior gas mileage and
performance to previous Ford models.” Id.
delivered the vehicle to “an authorized Ford repair
facility” for various repairs on multiple occasions,
including on January 15, 2009; July 9, 2009; March 4, 2010;
December 7, 2010; January 5, 2011; October 3, 2011; April 30,
2012; October 27, 2012; and January 25, 2016. Id.
¶¶ 59-67. On each occasion, the technician at the
repair facility informed Plaintiff “that the Vehicle
had been repaired and was safe to drive.” Id.
least four of Plaintiff's repairs concerned the engine.
On December 7, 2010, Plaintiff's vehicle received
“its first engine repair.” Id. ¶
62. Plaintiff complained “that the check engine and
wrench light were o[n] and that the vehicle lacked
power.” Id. Again, on October 3, 2011, for the
vehicle's “second repair to the engine, ”
“Plaintiff complained that the check engine light was
on” and “that the engine had an exhaust
leak.” Id. ¶ 64. On April 30, 2012, for
the vehicle's “third engine repair, ”
“Plaintiff complained that the ‘drive to clean
exhause [sic]' message would come on after driving for 20
miles.” Id. ¶ 65. On October 27, 2012,
for the vehicle's “fourth engine repair, ”
“Plaintiff complained that the vehicle displayed the
message ‘reduced engine power.'” Id.
¶ 66. Based on these allegations, Plaintiff concedes
that “[t]he earliest date that a person in
Plaintiff's position could have reasonably had notice of
his claims would be April 30, 2012.” Id.
Plaintiff still owned the vehicle, a class action was filed
on May 14, 2013 against Defendant in the United States
District Court for the Northern District of Illinois.
Darne v. Ford Motor Co., No. 13-cv-03594 (N.D. Ill.
May 14, 2013); see ECF No. 39, Ex. C
(“RJN”).The putative nationwide class was initially
defined as “[a]ll persons in the United States who
purchased or leased Ford trucks with the 6.4-liter Super Duty
diesel engine.” ECF No. 39, Ex. C at 7. The putative
class brought claims for (1) breach of express warranty; (2)
breach of implied warranty; (3) breach of state consumer
fraud statutes; (4) violations of the Illinois Uniform
Deceptive Trade Practices Act; (5) negligence; (6) fraud; (7)
unjust enrichment; and (8) exemplary damages. Id. at
11-21. Both parties acknowledge that Plaintiff was a putative
member of the Darne class. On September 1, 2017, the
United States District Court for the Northern District of
Illinois dismissed the case with prejudice. Darne v. Ford
Motor Co., 2017 WL 3836586, at *13 (N.D. Ill. Sept. 1,
January 17, 2019, Plaintiff filed a complaint against
Defendant in California Superior Court for the County of
Monterey. ECF No. 1-3 (“Compl.”). Plaintiff's
complaint alleged five causes of action: (1) breach of
express warranty under the Song-Beverly Consumer Warranty Act
(“Song-Beverly Act”), id. ¶¶
83-97; (2) breach of implied warranty under the Song-Beverly
Act, id. ¶¶ 98-108; (3) fraudulent
concealment, id. ¶¶ 109-119; (4)
fraudulent inducement - intentional misrepresentation,
id. ¶¶ 120-129; and (5) fraudulent
inducement - negligent misrepresentation, id.
¶¶ 130-145. Plaintiff also alleged that “all
statute of limitations periods are tolled by the discovery
rule and the doctrine of fraudulent concealment.”
Id. ¶ 69.
January 31, 2019, in state court, Defendant filed an answer
to Plaintiff's complaint. ECF No. 1-3, Ex. B. On February
19, 2019, Defendant removed the case to federal court. ECF
removal, Defendant filed a motion for judgment on the
pleadings on March 14, 2019. ECF No. 12. On July 19, 2019,
the Court granted Defendant's motion for judgment on the
pleadings with leave to amend. ECF No. 34. The Court
determined that the Song-Beverly Act express and implied
warranty claims were both subject to a four-year statute of
limitations. Id. at 6. The remaining common law
claims for fraud were all subject to a three-year statute of
limitations. Id. at 6. Therefore, “because
Plaintiff purchased his vehicle on June 30, 2008, the statute
of limitations on Plaintiff's claims appear to have
expired on June 30, 2011 (for Plaintiff's fraud claims)
and on June 30, 2012 (for Plaintiff's Song-Beverly Act
claims)-several years before Plaintiff filed his lawsuit on
January 17, 2019.” Id.
response, Plaintiff argued that the claims did not accrue
until January 2016, when Plaintiff became aware of an engine
defect after visiting a Ford repair facility. The Court
concluded otherwise. First, the Court determined that even if
the future performance exception applied to Plaintiff's
Song-Beverly Act express warranty claim, that claim would
only be tolled for five years, the duration of
Plaintiff's express warranty. Id. at 7-8. As a
result, the four-year statute of limitations under the
Song-Beverly Act began to run on June 30, 2013 and expired on
June 30, 2017, more than a year and a half before Plaintiff
filed his complaint. Id. at 8.
the Court held that neither the delayed discovery rule nor
fraudulent concealment tolling applied to any of
Plaintiff's claims because “to merit application of
the discovery rule or fraudulent concealment tolling, a
plaintiff must allege that he exercised due diligence to
uncover his injury.” Id. (quotation marks
omitted). Plaintiff failed to adequately allege that
Plaintiff exercised due diligence to uncover his injury and
that Plaintiff was unable to discover the engine defect until
January 25, 2016 because Plaintiff had repeatedly complained
of engine problems and tendered his vehicle to authorized
Ford repair facilities on eight different occasions between
January 9, 2009 and October 27, 2012. Id. at 9.
“Plaintiff's allegation that Plaintiff only became
aware of the engine defect in January 2016, even though the
Ford dealer that Plaintiff visited in January 2016 made the
same representation as after all prior repairs ‘that
the Vehicle had been repaired and was safe to drive,'
[was] implausible.” Id. at 11. Accordingly,
Plaintiff's claims were all time-barred, and the Court
granted Defendant's motion for judgment on the pleadings
with leave to amend. Id. at 12.
Court noted, however, that “[e]ven though the statute
of limitations alone suffice[d] to grant Defendant's
motion for judgment on the pleadings on all of
Plaintiff's claims, the Court [would address]
Defendant's other arguments that Plaintiff's fraud
claims [were] inadequate.” Id. at 12. The
Court first rejected Defendant's argument that the
economic loss rule barred Plaintiff's fraud claims, but
agreed that Plaintiff failed to plead the fraud claims with
the specificity that Rule 9(b) requires. Id. at 13.
Specifically, Plaintiff alleged that he received and read
written promotional materials from Ford, but Plaintiff failed
to allege what those promotional materials were, how
Plaintiff received them, and specifically when Plaintiff read
the materials. Id. at 14. Additionally, Plaintiff
alleged that he viewed television and radio commercials about
the Super Duty F-350's features, but did not specify when
he viewed those commercials, which specific commercials he
saw or heard, and any specific statements Defendant made in
those commercials. Id. Finally, Plaintiff alleged
that a salesperson at Salinas Valley Ford verbally
represented to Plaintiff that “‘the new 6.4L
engine was a newly-designed higher performing and better
engine than the previous 6.0 Liter PowerStroke Engine,
'” id. (quoting Compl. ¶ 56), but
Plaintiff did not allege what the salesperson specifically
said or the salesperson's identity. Id.
Accordingly, the Court held that “Plaintiff has failed
to plead his fraud allegations with the requisite specificity
under Rule 9(b), which provides another reason, beyond the
statute of limitations bar, to grant Defendant's motion
for judgment on the pleadings.” Id.
for good measure, the Court addressed Defendant's puffery
arguments. Plaintiff alleged that a salesperson told
Plaintiff that the Ford F-350 engine was “better and
improved” and “higher performing, ” and
that unspecified promotional material “advertised the
Super Duty F-350 and its engine as high-quality
products.” Id. at 14-15. The Court concluded
that “[t]hose statements are precisely the sort of
‘vague or highly subjective claims about product
superiority' that are not actionable.” Id.
at 15. This conclusion provided yet another reason to grant
judgment on the pleadings as to Plaintiff's fraud claims.
Nonetheless, the Court granted leave to amend on all of
Plaintiff's fraud claims.
the Court's order granting Defendant's motion for
judgment on the pleadings with leave to amend, Plaintiff
filed an amended complaint. ECF No. 37 (“FAC”).
The FAC alleges the same five causes of action as the
Complaint: (1) breach of express warranty under the
Song-Beverly Act, id. ¶¶ 102-16; (2)
breach of implied warranty under the Song-Beverly Act,
id. ¶¶ 117-27; (3) fraudulent concealment,
id. ¶¶ 128-38; (4) fraudulent inducement -
intentional misrepresentation, id. ¶¶
139-48; and (5) fraudulent inducement - negligent
misrepresentation, id. ¶¶ 149-64. Similar
to the Complaint, the FAC alleges that “all statute of
limitations periods are tolled by the discovery rule and the
doctrine of fraudulent concealment.” Id.
¶ 69. The FAC, however, also claims that Darne v.
Ford Motor Co., No. 13-cv-03594 (N.D. Ill. May 14,
2013)-a class action filed on May 14, 2013 in the United
States District Court for the Northern District of Illinois
that alleged similar claims against Defendant-tolled the
relevant statute of limitations periods because of “the
tolling doctrine established in American Pipe &
Construction Co. v. Utah” and “under
California law by the doctrine of equitable tolling.”
Id. ¶¶ 84, 93. Finally, the FAC included
additional allegations regarding the statements in the Ford
marketing brochure and the statements made by a salesperson
at Salinas Valley Ford. Id. ¶¶ 53, 56,
Rule 12(c) Motion for Judgment on the Pleadings
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). “Judgment on the pleadings is
properly granted when, accepting all factual allegations in
the complaint as true, there is no issue of material fact in
dispute, and the moving party is entitled to judgment as a
matter of law.” Chavez v. United States, 683
F.3d 1102, 1108 (9th Cir. 2012) (brackets and internal
quotation marks omitted). Like a motion to dismiss under Rule
12(b)(6), a motion under Rule 12(c) challenges the legal
sufficiency of the claims asserted in the complaint. See
Id. Indeed, a Rule 12(c) motion is “functionally
identical” to a Rule 12(b)(6) motion, and courts apply
the “same standard.” Dworkin v.
Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.
1989) (explaining that the “principal difference”
between Rule 12(b)(6) and Rule 12(c) “is the timing of
filing”); see also U.S. ex rel. Cafasso v. Gen.
Dynamics C4 Sys., 637 F.3d 1047, 1054 n.4 (9th Cir.
on the pleadings should thus be entered when a complaint does
not plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id.
(internal quotation marks omitted). For purposes of ruling on
a Rule 12(c) motion, the Court “accept[s] factual
allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
sounding in fraud are subject to the heightened pleading
requirements of Rule 9(b) of the Federal Rules of Civil
Procedure, which requires that a plaintiff alleging fraud
“must state with particularity the circumstances
constituting fraud.” Fed.R.Civ.P. 9(b); see Kearns
v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009).
To satisfy the heightened standard under Rule 9(b), the
allegations must be “specific enough to give defendants
notice of the particular misconduct which is alleged to
constitute the fraud charged so that they can defend against
the charge and not just deny that they have done anything
wrong.” Semegen v. Weidner, 780 F.2d 727, 731
(9th Cir. 1985). Thus, claims sounding in fraud must allege
“an account of the time, place, and specific content of
the false representations as well as the identities of the
parties to the misrepresentations.” Swartz v. KPMG
LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam)
(internal quotation marks omitted); see also Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.
2003) (“Averments of fraud must be accompanied by the
who, what, when, where, and how of the misconduct
charged.” (internal quotation marks omitted)). The
plaintiff must also set forth “what is false or
misleading about a statement, and why it is false.”
Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998
(9th Cir. 2010) (internal quotation marks omitted).
Leave to Amend
Court determines that judgment on the pleadings is warranted,
it must then decide whether to grant leave to amend. See
Harris v. Cnty. of Orange, 682 F.3d 1126, 1131, 1134-35
(9th Cir. 2012) (affirming district court's dismissal
under Rule 12(c) but reversing for failure to grant leave to
amend). Under Rule 15(a) of the Federal Rules of Civil
Procedure, leave to amend “shall be freely given when
justice so requires, ” bearing in mind “the
underlying purpose of Rule 15 to facilitate decisions on the
merits, rather than on the pleadings or
technicalities.” Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (en banc) (alterations and
internal quotation marks omitted). When granting judgment on
the pleadings, “a district court should grant leave to
amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Id.
at 1130 (internal quotation marks omitted). Accordingly,
leave to amend generally shall be denied only if allowing
amendment would unduly prejudice the opposing party, cause
undue delay, or be futile, or if the moving party has acted
in bad faith. Leadsinger, Inc. v. BMG Music
Publ'g, 512 F.3d 522, 532 (9th Cir. 2008). At the
same time, a court is justified in denying leave to amend
when a plaintiff “repeated[ly] fail[s] to cure
deficiencies by amendments previously allowed.” See
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892
(9th Cir. 2010). Indeed, a “district court's
discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.”
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (quotation
contends that the Court should grant judgment on the
pleadings on all five of Plaintiff's claims. Defendant
argues that all of Plaintiff's claims are time-barred and
that Plaintiff's fraud claims fail to meet Rule
9(b)'s heightened pleading standard and that many of the
alleged statements constitute non-actionable puffery.
offers a number of responses. First, Plaintiff argues that
the Song-Beverly express and implied warranty claims are
tolled by the future performance exception. Second, Plaintiff
again contends that the delayed discovery rule and the
fraudulent concealment doctrine tolled the statute of
limitations on all his claims. Third, Plaintiff asserts that
all of Plaintiff's claims are subject to American
Pipe tolling. Fourth, Plaintiff argues that California
equitable tolling applies to save all of Plaintiff's
claims. Finally, Plaintiff asserts that the Amended Complaint
fulfills Rule 9(b)'s requirements and that the alleged
statements are actionable.
Court agrees with Defendant that none of Plaintiff's
tolling arguments apply to save his claims. Specifically, the
future performance exception, the delayed discovery rule, the
fraudulent concealment doctrine, American Pipe
tolling, and California equitable tolling do not save
Plaintiff's claims. The Court addresses each of these
tolling arguments in turn before addressing Defendant's
remaining arguments that Plaintiff's fraud claims fail to
state a claim. The Court agrees with Defendant that the FAC
fails to state a claim for fraud. Accordingly, the Court
GRANTS Defendant's motion for judgment on the pleadings
Statute of Limitations
brings two claims under the Song-Beverly Act and three common
law claims for fraud. First, Plaintiff's claims under the
Song-Beverly Act for violation of express and implied
warranty are both subject to a four-year statute of
limitations. Krieger v. Nick Alexander Imports,
Inc., 234 Cal.App.3d 205, 213-15 (1991); see Philips
v. Ford Motor Co., 2016 WL 1745948, at *6 (N.D. Cal. May
3, 2016) (explaining that California courts apply to
Song-Beverly Act claims the four-year statute of limitations
that is also applicable to warranty actions under the
California Commercial Code). Second, Plaintiff's fraud
claims-specifically, for intentional fraudulent inducement,
negligent fraudulent inducement, and fraudulent
concealment-are all subject to a three-year statute of
limitations. Cal. Civ. Proc. Code § 338(d); see
Kline v. Turner, 87 Cal.App.4th 1369, 1373 (2001)
(“An action for relief on the grounds of fraud or
mistake must be commenced within three years.”).
purchased his vehicle on June 30, 2008 and filed this lawsuit
about 11 years later on January 17, 2019. Accordingly, absent
the application of any tolling doctrines, the statutes of
limitations on Plaintiff's claims appear to have expired
on June 30, 2011 (for Plaintiff's fraud claims) and on
June 30, 2012 (for Plaintiff's ...