Marshall v. Ford Motor Company et al

Filing 19

ORDER re: Motion to Strike, signed by District Judge Anthony W. Ishii on 4/7/2017. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BEVERLY J. MARSHALL,

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CASE NO. 1:17-CV-0006 AWI MJS

Plaintiff

ORDER RE: MOTION TO STRIKE

v.
FORD MOTOR COMPANY, a Delaware
corporation; DECKER FORD, INC., dba
Future Ford of Clovis, a California
corporation; and DOES 1-30, inclusive,
Defendants

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I. Background

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Plaintiff Beverly J. Marshall (“Plaintiff”) purchased a 2012 Ford Focus previously used as

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a rental car (“Vehicle”) from Defendant Decker Ford (“Decker”) on April 19, 2014. The fact that

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the Vehicle had been a rental car was not initially disclosed. Decker informed Plaintiff that the

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Vehicle had an automatic transmission. The transmission used was a Dual Power Shift 6 Speed

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Transmission which is not the same as a more traditional hydraulic automatic transmission.

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Defendant Ford Motor Company (“Ford”) had certified the Vehicle as being in good condition and

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provided certain warranties on it. On May 19, 2014, Plaintiff sent the Vehicle to Ford for repairs

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due to issues with the transmission. Ford serviced the Vehicle and returned it to Plaintiff. On

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October 23, 2014, Plaintiff again sent the Vehicle to Ford for repairs due to issues with the

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transmission. Ford again serviced the Vehicle and returned it to Plaintiff. In January 2015,

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Plaintiff requested that Ford repurchase the Vehicle; Ford refused to do so.

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Plaintiff has filed suit, alleging four causes of action based on consumer protection laws:

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(1) violation of the Song-Beverly Consumer Warranty Act (“Song-Beverly”) (2) violation of the

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Magnuson-Moss Warranty Act (“Magnuson-Moss”), (3) violation of Business & Professions Code

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§ 17200 et seq (also knows as the Unfair Competition law, “UCL”), and (4) violation of the

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Consumer Legal Remedies Act (“CLRA”). Doc. 2, Complaint. Plaintiff asks for punitive damages

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against Ford. Doc. 2, Complaint, 17:15-16.

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Decker has filed an answer. Doc. 17. Ford has filed a motion to strike, seeking to

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eliminate the request for punitive damages. Doc. 12. Plaintiff has not filed any opposition to the

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motion.

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II. Legal Standards
“The court may strike from a pleading an insufficient defense or any redundant,

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immaterial, impertinent, or scandalous matter.” Fed. Rule Civ. Proc. 12(f). The Ninth Circuit has

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stated that “Rule 12(f) does not authorize district courts to strike claims for damages on the ground

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that such claims are precluded as a matter of law.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d

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970, 974-75 (9th Cir. 2010). Rule 12(f) may not be used to strike a request for punitive damages.

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See, e.g. Estate of Prasad ex rel. Prasad v. County of Sutter, 958 F. Supp. 2d 1101, 1128 (E.D. Cal.

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2013), Bakersfield Pipe & Supply, Inc. v. Cornerstone Valve, LLC, 2015 U.S. Dist. LEXIS 96331,

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*5 (E.D. Cal. July 23, 2015). The proper vehicle for challenging the sufficiency of a punitive

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damages claim is a motion to dismiss under Rule 12(b)(6), and not a motion to strike under Rule

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12(f). “[W]here a motion is in substance a Rule 12(b)(6) motion, but is incorrectly denominated

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as a Rule 12(f) motion, a court may convert the improperly designated Rule 12(f) motion into a

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Rule 12(b)(6) motion.” Consumer Solutions Reo, LLC v. Hillery, 658 F. Supp. 2d 1002, 1020-21

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(N.D. Cal. 2009). The motion will be considered as though it were brought as a motion to dismiss

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for failure to state a claim upon which relief can be granted.

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A claim may be dismissed because of the plaintiff’s “failure to state a claim upon which

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relief can be granted.” Fed. Rule Civ. Proc. 12(b)(6). A dismissal under Rule 12(b)(6) may be

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based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a

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cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011);
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Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008).

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III. Discussion
Ford asserts that the first three causes of action do not allow for punitive damages, while

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Plaintiff’s CLRA claim does not include such a request. Doc. 12-1, Brief, 2:24-26. Plaintiff only

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mentions her request for punitive damages at the end of her complaint, in the section entitled

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“Prayer For Relief”; she does not make clear which cause or causes of action the request is related

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to. See Doc. 2, Complaint.

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The first cause of action is Song-Beverly. California law permits the recovery of actual

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damages plus a civil penalty of up to two times those actual damages if the Song-Beverly

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violations are willful or if a manufacturer breaches an express warranty by refusing to make

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restitution after reasonable repair attempts fail. Cal. Civ. Code § 1794(c) and (e). Plaintiff has

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requested this trebling of damages. Doc. 2, Complaint, 11:13-15. This civil penalty is distinct

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from punitive damages under California law; in fact, a plaintiff may not recover both forms of

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relief for the same conduct. Troensegaard v. Silvercrest Indus., 175 Cal. App. 3d 218, 228 (Cal.

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App. 1st Dist. 1985) (“by seeking a ‘civil penalty’ and also attorney’s fees and all reasonable

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expenses as allowed by Civil Code section 1794, plaintiff had in effect elected to waive punitive

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damages under section 3294”); Gibson v. Chrysler Corp., 1998 U.S. Dist. LEXIS 11343, *8 (N.D.

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Cal. July 20, 1998); Shore v. Gurnett, 122 Cal. App. 4th 166, 174 (Cal. App. 1st Dist. 2004).

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Song-Beverly is not a proper basis for Plaintiff’s request for punitive damages.

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The second cause of action is Magnuson-Moss, a federal law. “The Magnuson-Moss Act

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provides a federal cause of action for state law express and implied warranty claims. However,

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[the Magnuson-Moss Act] does not expand the rights under those claims, and dismissal of the

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state law claims requires the same disposition with respect to an associated MMWA claim.” In re

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Sony Grand WEGA KDF-E A10/A20 Series Rear Projection HDTV TV Litig., 758 F. Supp. 2d

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1077, 1101 (S.D. Cal. 2010), citations omitted. Magnuson-Moss does not provide an independent

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basis for grant of punitive damages. See Kelly v. Fleetwood Enters., 377 F.3d 1034, 1039 (9th Cir.

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2004). Magnuson-Moss is not a proper basis for Plaintiff’s request for punitive damages.
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The third cause of action is UCL. “It is settled law that punitive damages are not available

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under § 17200.” Flo & Eddie v. Sirius Xm Radio, 2016 U.S. Dist. LEXIS 185233, *5 n.1 (C.D.

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Cal. Sep. 8, 2016), citing Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1148

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(2003). UCL is not a proper basis for Plaintiff’s request for punitive damages.

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The fourth cause of action is CLRA. This California law does allow for punitive damages.

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Plaintiff asserts that Defendants’ various misrepresentations violated Cal. Civ. Code § 1770(a)(2),

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(3), (5), (7), (9), (14), and (16). Doc. 2, Complaint, 15:17-27. As a remedy for CLRA violations,

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Cal Civ. Code § 1780(a)(1) provides for actual monetary damages while Section 1780(a)(2), (3),

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(4), and (5) provide for injunctions, restitution, punitive damages, and other relief respectively.

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Cal. Civ. Code § 1780(a). Plaintiff states specifically that she is “not currently seeking damages

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under Civil Code § 1780(a)(l)” but rather is seeking an injunction, restitution, rescission, and

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“other relief as may be prayed for at trial.” Doc. 2, Complaint, 16:20-17:4. Notably, she does not

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include punitive damages on this list of relief requested under the CLRA.

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Additionally, as plead, Plaintiff is not entitled to CLRA punitive damages. For money

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damages, a plaintiff must first follow a notice process that permits a defendant to remedy any

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Section 1770 violation. Cal. Civ. Code § 1782. Ford points out that Plaintiff has not plead

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compliance with these procedures. Punitive damages under CLRA must also meet the

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requirements of Cal. Civ. Code § 3294, which sets out standards for when punitive damages are

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warranted. Hardt v. Chrysler Group LLC, 2015 U.S. Dist. LEXIS 187386, *29 (C.D. Cal. June 15,

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2015). “In California, as at common law, actual damages are an absolute predicate for an award of

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exemplary or punitive damages.” Kizer v. County of San Mateo, 53 Cal. 3d 139, 147 (Cal. 1991).

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Plaintiff does not appear to seek punitive damages under the CLRA nor is she entitled to such

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damages as currently plead.

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IV. Order
Plaintiff’s request for punitive damages is DISMISSED without prejudice. Plaintiff is not

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granted leave to amend at this time; if she should change her mind and seek monetary damages for

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the alleged violations of the Consumer Legal Remedies Act, she may make a motion to amend at
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an appropriate time.

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IT IS SO ORDERED.
Dated: April 7, 2017
SENIOR DISTRICT JUDGE

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