Beshwate et al v. BMW of North America, LLC et al

Filing 33

ORDER GRANTING Defendant CarMax's 27 Motion to Dismiss ; ORDER GRANTING Defendant CarMax's 28 Motion to Strike ;Plaintiffs shall file a Second Amended Complaint within fourteen (14) days from the date of entry of this order, signed by Magistrate Judge Stanley A. Boone on 10/3/2017. (14-Day Deadline) (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

RICHARD ANTHONY BESHWATE, JR., et
al.,

Case No. 1:17-cv-00417-SAB
ORDER GRANTING DEFENDANT
CARMAX’ MOTION TO DISMISS

12
Plaintiffs,
13
v.

(ECF Nos. 27, 28, 30, 31)

14
BMW OF NORTH AMERICA, LLC, et al.,

FOURTEEN DAY DEADLINE

15
Defendants.
16
17
18

Currently before the Court is Defendant CarMax’s motion to dismiss and motion to

19 strike. Having considered the moving, opposition and reply papers, the declarations and exhibits
20 attached thereto, as well as the Court’s file, the Court issues the following order.
21

I.

22

PROCEDURAL HISTORY

23

On February 17, 2017, Plaintiffs Richard Anthony Beshwate, Jr., and Bonnie Joy

24 Beshwate (“Plaintiffs”) filed this action in Fresno County Superior Court. (ECF No. 1-1.) On
25 March 22, 2017, Defendant CarMax Auto Superstores California, LLC (“Defendant CarMax”)
26 removed this action to the Eastern District of California with the consent of Defendant BMW of
27 North America, LLC (“Defendant BMW”). (ECF No. 1.) On March 29, 2017, Defendant BMW
28 filed an answer and Defendant CarMax consented to the jurisdiction of the magistrate judge.

1

1 (ECF Nos. 7, 8.)
2

Defendant CarMax filed a motion to dismiss and motion to strike on April 25, 2017.

3 (ECF Nos. 11, 12.) On April 28, 2017, Defendant BMW consented to the jurisdiction of the
4 magistrate judge. (ECF No. 13.) On May 1, 2017, Plaintiffs consented to the jurisdiction of the
5 magistrate judge. (ECF No. 14.) At the stipulation of the parties, Plaintiffs were granted leave
6 to file an amended complaint and Defendant CarMax’s motion to dismiss and motion to strike
7 were terminated. (ECF No. 21.) On August 15, 2017, Plaintiffs filed a first amended complaint
8 alleging violations of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”), Cal. Civ.
9 Code §§ 1790, et seq.; Breach of the Implied Warranty of Merchantability; Consumers Legal
10 Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq.; and California’s Unfair Competition
11 Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq. (ECF No. 24.)
12

Defendant BMW filed an answer to the first amended complaint on August 29, 2015.

13 (ECF No. 26.) Defendant CarMax filed a motion to dismiss and motion to strike on September
14 5, 2017. (ECF No. 27.) On September 20, 2017, Plaintiffs filed an opposition to the motion to
15 dismiss and motion to strike. (ECF No. 30.) On September 26, 2017, Defendant CarMax filed a
16 reply. (ECF No. 31.)
17

II.

18

ALLEGATIONS IN FIRST AMENDED COMPLAINT

19

Plaintiffs’ first amended complaint alleges causes of action against Defendant CarMax

20 for violation of the Song-Beverly Act; breach of the implied warranty of merchantability; CLRA;
21 and the UCL based on Plaintiffs purchase of a used 2011 BMW 550i Gran Turisimo.
22

Around November 4, 2014, Plaintiff CarMax advertised a used 2011 BMW 550i Gran

23 Turisimo for sale to the public. (First Am. Compl. (“FAC”) ¶ 16, ECF No. 24.) Plaintiffs
24 purchased the vehicle from Plaintiff CarMax for a total of $38,895.87, including taxes, licensing
25 fees and financing. (FAC ¶ 18.) Plaintiff’s traded in their Mercedes Benz and paid Defendant
26 CarMax the total purchase price of the vehicle. (FAC ¶ 20.) The vehicle was purchased
27 primarily for personal, household and family use. (FAC ¶ 21.) At the time the BMW was
28 purchased it had 26,135 miles on the odometer and had the remainder of the basic factory

2

1 warranty of 50,000 miles or 48 months remaining. (FAC ¶ 23.) The vehicle also was subject to
2 the seven year or 70,000 mile California Emission Warrantee. (FAC ¶ 25.)
3

Defendant CarMax had advertised that their used vehicles were subject to a “rigorous

4 125-Point Quality Inspection” and represented to Plaintiff’s that the vehicle had passed the
5 inspection. (FAC ¶¶ 29, 31.) Defendant CarMax represented that “We check over 125 points
6 including (but not limited to):” and itemizes various vehicle operational and mechanical
7 components related to the vehicle’s engine, cooling system, fuel system, drive axle, transmission,
8 suspension system, electrical system, brake system, steering systems, body/interior, heating and
9 A/C system, lighting system, accessories, and “miscellaneous.”

(FAC ¶ 32.)

Although

10 Defendant CarMax used an inspection checklist for their mechanics and/or technicians to note
11 the condition of each of the inspected components, Defendant CarMax included a single-page
12 unsigned Certificate of Quality Inspection (“CQI”) that included no specific information about
13 the vehicle with the purchase. (FAC ¶¶ 30, 34, 86.) Consumers were not provided with a copy
14 of the inspection checklist. (FAC ¶ 89.)
15

Plaintiffs believe that the vehicle they purchased contains the N63 engine which has been

16 found to have defects that impact the safety, reliability, and merchantability of the vehicle. (FAC
17 ¶ 42.) Within a few months of purchasing the vehicle, Plaintiff’s vehicle had an engine and/or
18 drive train malfunction and repeated warning lights which resulted in various stored fault codes.
19 (FAC ¶ 43.) Plaintiffs returned the vehicle to Defendant CarMax complaining of these problems
20 and were told to take the vehicle to a BMW authorized repair facility as the vehicle was still
21 covered by the manufacturer’s warranty. (FAC ¶¶ 44, 45.)
22

Plaintiffs took the vehicle to BMW Fresno, an authorized dealership, for repairs at least

23 seven times and the vehicle was out of service on these seven occasions. (FAC ¶ 46.) In April
24 2015 the service record notes: “CHANGE ENGINE OIL AND FILTER MODIFY THE OIL
25 SERVICE INTERVAL PROGRAMING AND ENCODE ALL AND E7X WITHOUT CAS”
26 and “PERFORMED SIB 110614 CUSTOMER CARE PACKAGE.” (FAC ¶ 47.) In June 2015,
27 the service record notes: “CHARGED VEHICLE BATTERY” and “PERFORMED SIB 130215
28 N63 REPLACE HIGH PRESSURE FUEL PUMPS.” (FAC ¶ 48.)

3

1

In August 2015, Plaintiffs experienced problems shifting, the check engine light went on,

2 and the vehicle was taken to BMW Fresno. (FAC ¶ 49.) The service record notes: “CONNECT
3 BATTERY CHARGER” and “REVIEW VEHICLE HISTORY. HIGH FUEL PRESSURE
4 PLAUSIBILITY FAULTS [sic]. MISSFIRE FAULTS, LOW PRESURRE FUEL FAULTS.”
5 (FAC ¶ 49.)
6

In September 2015 the engine malfunction light came on (drivetrain malfunction) and

7 they took the car to BMW Fresno. (FAC ¶ 50.) The drivetrain malfunction light came on again
8 in August 2016. (FAC ¶ 51.) Despite Plaintiffs’ efforts to have the vehicle repaired, the
9 dangerous and defective issues with the vehicle have not been fixed leaving the BMW in
10 defective condition. (FAC ¶ 53.) Plaintiffs have demanded a buy-back/repurchase of the BMW,
11 but Defendants CarMax and BMW have refused to buy-back or repurchase the vehicle. (FAC ¶¶
12 58, 59.)
13

Since 2008, Defendants CarMax and BMW knew or should have known that the N63

14 engine has defects causing it to improperly burn off and/or consume abnormally high amounts of
15 oil, create excess heat causing engine components to fail prematurely and cause premature wear
16 of the engine battery resulting in the need to replace the battery as often as every 10,000 miles or
17 1 year which is well before the useful life of an automotive battery. (FAC ¶ 61.) The motor oil
18 defect is a safety concern because it can cause engine failure while operating the vehicle
19 additionally; it can result in engine damage. (FAC ¶¶ 63, 64.) Defendant BMW acknowledged
20 the battery defect in December 2014 in a Technical Service bulletin that instructed dealers to
21 replace the batteries of vehicles with the N63 at every engine oil service covered within the 4
22 year/50,000 mile maintenance program. (FAC ¶ 68.) Defendant BMW acknowledged other
23 defects with the N63 engine when it extended warranties on the fuel delivery module in July
24 2015, engine pump vacuum in January 2016, and cylinder head covers crankcase ventilation
25 hose lines in January 2016. (FAC ¶ 69.)
26

At the time that Plaintiffs purchased the BMW, the manufacturer’s guidelines

27 recommended replacing the engine oil every 15,000 miles or 2 years. (FAC ¶ 73.) In December
28 2014, Defendants issued a service bulletin stating that the engine oil should be serviced every

4

1 10,000 miles or 12 months which is a significant increase in the frequency of required oil
2 servicing. (FAC ¶ 74.) This bulletin was issued only to authorized service centers and vehicle
3 owners were not notified of the significant change in suggested oil service interval. (FAC ¶ 75.)
4

Defendant CarMax did not include an inspection or determination whether there were any

5 open manufacturer recalls for defective conditions that exist in the vehicles that it advertises and
6 sells. (FAC ¶ 97.) Defendant CarMax presented a document entitled “Important Information
7 Regarding Your Purchase – Manufacturer Recalls” and requested that Plaintiffs sign it. (FAC ¶
8 101.)
9

III.

10

LEGAL STANDARDS

11

A.

Motion to Dismiss

12

Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on

13 the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” A
14 complaint must contain “a short and plain statement of the claim showing that the pleader is
15 entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not
16 require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant17 unlawfully harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a
19 complaint, all well-pleaded factual allegations must be accepted as true. Iqbal, 556 U.S. at 67820 79. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
21 conclusory statements, do not suffice.” Id. at 678.
22

In deciding whether a complaint states a claim, the Ninth Circuit has found that two

23 principles apply. First, to be entitled to the presumption of truth the allegations in the complaint
24 “may not simply recite the elements of a cause of action, but must contain sufficient allegations
25 of underlying facts to give fair notice and to enable the opposing party to defend itself
26 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair
27 to require the defendant to be subjected to the expenses associated with discovery and continued
28 litigation, the factual allegations of the complaint, which are taken as true, must plausibly

5

1 suggest an entitlement to relief. Starr, 652 F.3d at 1216.
2

B.

Motion to Strike

3

Rule 12(f) provides that “the court may strike from a pleading . . . any redundant,

4 immaterial, impertinent, or scandalous matter.” Motions to strike pursuant to Rule 12(f) are
5 generally regarded with disfavor and the remedy is to be used only “when necessary to
6 discourage parties from raising allegations completely unrelated to the relevant claims and when
7 the interests of justice so require.” Sapiro v. Encompass Ins., 221 F.R.D. 513, 517 (N.D. Cal.
8 2004).
9

The purpose of a motion to strike under Rule 12(f) “is to avoid the expenditure of time

10 and money that must arise from litigating spurious issues by dispensing with those issues prior to
11 trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citations
12 omitted). Immaterial matter “has no essential or important relationship to the claims for relief or
13 defenses being pleaded”; and “impertinent matter consists of statements that do not pertain, and
14 are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F2d 1524, 1527 (9th
15 Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994).
16

IV.

17

DISCUSSION

18

A.

Jurisdiction

19

Initially, the federal court has the duty to determine if it has jurisdiction over an action.

20 Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Since Defendant
21 removed this action on the basis of diversity jurisdiction, the Court shall consider whether
22 diversity jurisdiction exists.
23

Federal courts are courts of limited jurisdiction and their power to adjudicate is limited to

24 that granted by Congress. U.S. v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). As relevant
25 here, district courts have original jurisdiction of all civil actions between citizens of different
26 States in which “the matter in controversy exceeds the sum or value of $75,000, exclusive of
27 interest and costs.” 28 U.S.C. § 1332(a). This requires complete diversity of citizenship and the
28 presence “of a single plaintiff from the same State as a single defendant deprives the district

6

1 court of original diversity jurisdiction over the entire action.” Abrego Abrego v. The Dow
2 Chemical Co., 443 F.3d 676, 679 (9th Cir. 2006) (citations omitted). In this circuit, where the
3 amount of damages is not specified in the complaint, it is the removing party’s burden to show
4 by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional
5 amount. Lewis v. Verizon Communications, Inc., 627 F.3d 395, 397 (9th Cir. 2010); Abrego
6 Abrego, 443 F.3d at 679; Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir.
7 2007).
8

In a diversity action, the removing defendant has the burden of establishing the amount in

9 controversy by a preponderance of the evidence. Rodriguez v. AT & T Mobility Servs. LLC,
10 728 F.3d 975, 977 (9th Cir. 2013). Jurisdiction is analyzed based upon the pleadings filed at the
11 time of removal without reference to any subsequent pleadings filed in the action. Sparta
12 Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998).
13

1.

Diversity of Citizenship

14

Defendant CarMax is a limited liability company organized under the laws of the

15 Commonwealth of Virginia and with its principal place of business in the Commonwealth of
16 Virginia. (Notice of Removal 3, ECF No. 1; Compl. ¶ 4.) A limited liability company is a
17 citizen of every state of which its owners or members are citizens.

Johnson v. Columbia

18 Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The sole member of Defendant
19 CarMax Auto Superstores is CarMax Auto Superstores West Coast, Inc. which is incorporated
20 under the laws of the Commonwealth of Virginia with its principal place of business in the
21 Commonwealth of Virginia. (Notice of Removal 4; ECF No. 1-3.) A corporation is deemed to
22 be a citizen of any State by which it has been incorporated and of the State where it has its
23 principal place of business. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 94 (2005) (quoting 28
24 U.S.C. § 1332(c)(1)). Therefore, Defendant CarMax is a citizen of the Commonwealth of
25 Virginia.
26

Defendant CarMax asserts that Defendant BMW is a limited liability company organized

27 under the laws of the State of Delaware and with its principal place of business in the State of
28

7

1 New Jersey. (Notice of Removal 4;1 Compl. ¶ 3.) Defendant CarMax also contends that the sole
2 member of Defendant BMW is BMW (US) Holding Corp. which is a corporation organized
3 under the laws of the State of Delaware and with its principal place of business in New Jersey.
4 Therefore, Defendant BMW is a citizen of Delaware and New Jersey.
Defendant CarMax contends that Plaintiffs are citizens of California, referencing the

5

6 complaint in which Plaintiffs allege that they reside in California. (FAC ¶ 1; ECF No. 1-1 at 18,
7 19.)

“[T]he diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of

8 residency.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). “A person
9 residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of
10 that state.” Kanter, 265 F.3d at 857. While courts treat domicile as prima facie evidence to
11 citizenship, the presumption has not been adopted in the Ninth Circuit. Mondragon v. Capital
12 One Auto Fin., 736 F.3d 880, 886 (9th Cir. 2013).
Plaintiffs have not challenged the assertion that they are citizens of California. Plaintiffs

13

14 have declared that they reside in Fresno County, the motor vehicle was purchased in Fresno
15 County, and the motor vehicle is permanently housed in Fresno County. (ECF No. 24 at pp. 28,
16 29.) The Court finds that Plaintiffs are citizens of California and therefore complete diversity of
17 citizenship exists in this action.
18

2.

Amount in Controversy

19

In the notice of removal, Defendant CarMax states that Plaintiffs are seeking restitution

20 of the purchase contract valued at $38,895.87, a civil penalty of up to two times the actual
21 damages, attorney fees as authorized by statute, and injunctive relief. (Notice of removal 5, ECF
22 No. 1; Compl. p. 17, ECF No. 1-1.)
The amount in controversy is merely an estimate of the total amount in dispute; and the

23

24 Ninth Circuit expressly contemplates that the district court will consider some evidentiary record
25 in determining the amount in controversy.

Lewis, 627 F.3d at 400.

Plaintiff is seeking

26 restitution of $38,895.87 and civil penalties of up to two times the actual damages. Plaintiffs
27
1

All references to pagination of specific documents pertain to those as indicated on the upper right corners via the

28 CM/ECF electronic court docketing system.

8

1 also seek attorney fees and injunctive relief. The Court finds that Defendant CarMax has
2 adequately alleged that the amount in controversy in this action meets the jurisdictional
3 requirement.
4

Having found diversity of citizenship and that the jurisdictional amount is met, the Court

5 finds diversity jurisdiction exists in this action.
6

B.

Motion to Dismiss

7

Defendant CarMax moves to dismiss the amended complaint in its entirety for failure to

8 state a claim.
9
10

1.

First Cause of Action - Song-Beverly Act

Defendant CarMax contends that Plaintiffs have failed to allege a viable breach of

11 express warranty claim because the Song-Beverly Act imposes liability for the failure to repair or
12 remedy a covered nonconformity that arose within the warranty period after a reasonable number
13 of attempts. Defendant CarMax argues that the warranty issued by Defendant CarMax was for
14 thirty days and there are no allegations that the vehicle was presented to Defendant CarMax
15 within thirty days of purchase for repair and contradicts that there was a problem with the vehicle
16 within the thirty day period. Defendant CarMax also asserts that to successfully invoke the
17 Song-Beverly Act they had to be provided with a reasonable number of attempts to repair the
18 vehicle and only one opportunity is not sufficient.
19

Plaintiff counters that Defendant CarMax could not, and would not, repair the defects in

20 the vehicle. First, Plaintiffs argue that the defects existed at the time that the vehicle was
21 purchased and the exact date that the defects manifested themselves cannot be determined
22 because Defendant CarMax did not provide Plaintiffs with a completed inspection report which
23 might document the individual components that ultimately failed and caused the warning lights
24 to illuminate. Further, Plaintiffs contend that the fact that the defects manifested themselves
25 after the warranty period is relevant as to whether the defects existed during the warranty period.
26 Plaintiff also argues that Defendant CarMax’s warranty is of absolutely no value if it kicks in
27 only when the manufacturer’s warranty coverage is exhausted and is therefore misleading and
28 deceptive. Finally, Plaintiffs contend that the vehicle is not capable of being repaired and any

9

1 efforts that Defendant CarMax made to repair would be futile as Defendant BMW is unable to
2 remedy the issues.
3

Defendant CarMax responds that Plaintiffs have not addressed the authority showing that

4 they have failed to state a claim, but argue that Defendant CarMax should be held liable for an
5 express warranty that was never breached solely because Plaintiffs believe that a defect existed at
6 the time that the vehicle was purchased. Defendant CarMax argues that the only express
7 warranty was the limited thirty day warranty and there are no facts alleged to show that
8 Defendant CarMax’ express warranty obligations were ever triggered.
9

The Song-Beverly Act was enacted in 1970 and “regulates warranty terms, imposes

10 service and repair obligations on manufacturers, distributors, and retailers who make express
11 warranties, requires disclosure of specified information in express warranties.”

Murillo v.

12 Fleetwood Enterprises, Inc., 17 Cal.4th 985, 989 (1998). The Song-Beverly Act “is manifestly a
13 remedial measure, intended for the protection of the consumer; it should be given a construction
14 calculated to bring its benefits into action.” Kwan v. Mercedes-Benz of N. Am., Inc., 23
15 Cal.App.4th 174, 184 (1994). “[T]he purpose of the Act was to address difficulties faced by
16 some consumers in enforcing express warranties, by the creation of additional remedies, the
17 ‘refund-or-replace’ provisions and implied warranties, for cases in which a purchaser’s goods
18 cannot be repaired to meet express warranty standards after a ‘reasonable number of attempts.’ ”
19 Dagher v. Ford Motor Co., 238 Cal.App.4th 905, 916 (2015) (quoting Cal. Civ. Code § 1793.2,
20 subd. (d)(1), (2)).
21

To bring a claim under the Song-Beverly Act, the Plaintiff must demonstrate that 1) they

22 purchased “consumer goods”; 2) they were a “buyer” or “retail buyer,” as individuals “who buy[
23 ] consumer goods from a person engaged in the business of manufacturing, distributing or selling
24 consumer goods at retail; and 3) they purchased goods from a statutory “retail seller,” a person
25 that “engages in the business of selling or leasing consumer goods to retail buyers.” Dagher, 238
26 Cal.App.4th at 917. Here, Plaintiffs allege that they were buyers who purchased a vehicle from
27 Defendant CarMax who was engaged in the business of selling used vehicles. (FAC ¶¶ 2, 5, 8,
28 18.) Plaintiffs have alleged sufficient facts to bring a claim under the Song-Beverly Act.

10

1

The Song-Beverly Act includes limited provisions for an express warranty to be sold and

2 enforced for used vehicles. Dagher, 238 Cal.App.4th at 921; see Cal. Civ. Code § 1795.5. “A
3 plaintiff pursuing an action under the [Song-Beverly] Act has the burden to prove that (1) the
4 vehicle had a nonconformity covered by the express warranty that substantially impaired the use,
5 value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an
6 authorized representative of the manufacturer of the vehicle for repair (the presentation element);
7 and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable
8 number of repair attempts (the failure to repair element). Donlen v. Ford Motor Co., 217
9 Cal.App.4th 138, 152 (2013), as modified on denial of reh’g (July 8, 2013).
10

The statute defines an express warranty as “[a] written statement arising out of a sale to

11 the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer
12 undertakes to preserve or maintain the utility or performance of the consumer good or provide
13 compensation if there is a failure in utility or performance.” Cal. Civ. Code § 1791.2(a)(1). “An
14 express warranty ‘is a contractual promise from the seller that the goods conform to the promise.
15 If they do not, the buyer is entitled to recover the difference between the value of the goods
16 accepted by the buyer and the value of the goods had they been as warranted.’ ” Dagher, 238
17 Ca.App.4th at 938 (quoting Daugherty v. American Honda Motor Co., Inc., 144 Cal.App.4th
18 824, 830 (2006)). “In relation to express warranties, the rules for interpreting them do not differ
19 from those applied to other contracts.” Daniel v. Ford Motor Co., 806 F.3d 1217, 1224 (9th Cir.
20 2015) (quoting Miller v. Germain Seed & Plant Co., 193 Cal. 62 (1924) (Seawell, J.,
21 dissenting)).
22

Plaintiffs argue that Defendant CarMax seeks to preclude the claim because the defects

23 purportedly did not exist at the time that the vehicle was purchased from Defendant CarMax.
24 But, Defendant CarMax does not contend that the vehicle did not have defects, but that the
25 defects did not manifest themselves within the express warranty period.
26

The 30 day limited warranty for the vehicle states “The dealer will pay 100% of the labor

27 and 100% of the parts for the covered systems that fail during the warranty period.” (Buyers
28 Guide, attached at ECF No. 24, p. 32.) Here, Plaintiffs do not allege that any covered systems

11

1 failed within the express warranty period. Specifically, Plaintiffs allege that within a few months
2 of purchasing the vehicle it had engine and/or drive-train malfunction and repeated illumination
3 of the warning lights. (FAC ¶ 43.) While Plaintiff’s have attached service invoices to the first
4 amended complaint, the earliest service invoice is dated March 11, 2015 which is more than 60
5 days after the express warranty expired. (ECF No. 24 at pp. 30, 36.)
Plaintiffs rely on Mexia v. Rinker Boat Co., Inc., 174 Cal.App.4th 1297 (2009); and

6

7 Donlen, for the proposition that a latent defect that manifests itself outside the warranty period is
8 relevant to establishing that the defect existed within the warranty period. However, Mexia was
9 addressing the issue in the context of the implied warranty of merchantability, not an express
10 warranty such as that at issue here.2
In Donlen, the appellate court considered whether the trial court erred by admitting

11

12 evidence of repairs after the warranty period expired to prove a violation of the Song-Beverly
13 Act.

The defendant argued that such evidence extends the terms of the warranty but the

14 appellate court disagreed. Donlen, 217 Cal.App.4th at 149. A defect that first appears after a
15 warranty has expired does not necessarily mean the defect did not exist when the product was
16 purchased. Id. Post warranty repair may be relevant to show the vehicle was not repaired to
17 conform to the warranty during the warranty’s existence. Id. Since the Song-Beverly Act is a
18 remedial measure intended to protect consumers, the plaintiff does not need to prove the cause of
19 the vehicle’s defect, but only need show that it did not conform to the express warranty. Id. But
20 in this instance, the vehicle was not presented for repair within the warranty period.
Although Plaintiffs allege that Defendant CarMax should have known of the engine

21

22 defects since 2008, the only facts alleged to demonstrate knowledge are a December 2014
23
24
25

2

Similarly the other cases relied on by Plaintiffs are not persuasive. In Jensen v. BMW of N. Am., Inc., 35
Cal.App.4th 112 (1995), as modified on denial of reh’g (June 22, 1995), the defects manifested themselves within
several weeks of the plaintiff leasing the vehicle and it was brought in for repair within the warranty period. Jensen,
35 Cal.App.4th at 120. The issue on appeal was whether the vehicle was a new or used vehicle and whether BMW’s
written express new car warranty applied. Id. at 121-128.

26 In Jiagbogu v. Mercedes-Benz USA, 118 Cal.App.4th 1235 (2004), the vehicle defects manifested within the first
week after sale and the vehicle was taken to the dealer within the warranty period for repairs. Jiagbogu, 118

27 Cal.App.4th at 1238-39. The appellate court held that the trial court properly denied a motion in limine to exclude
evidence of post warranty malfunctions where the experts differed on whether certain malfunctions that occurred

28 after the warranty period could be related to malfunctions that occurred within the warranty period. Id. at 1245-46.
12

1 Technical Service bulletin instructing BMW dealers to replace the batteries at every covered
2 engine oil service and that BMW extended the warranties on the fuel delivery module in July
3 2015, engine pump vacuum in January 2016, and cylinder head covers crankcase ventilation line
4 hoses in January 2016. (FAC ¶¶ 68, 69.) None of these events occurred prior to the Plaintiffs
5 purchasing the vehicle from Defendant CarMax, and therefore, are not sufficient to demonstrate
6 that Defendant CarMax had notice of problems with the vehicle.
7

Plaintiffs also allege that Defendant CarMax represented that it performed a check of

8 over 125 points. (FAC ¶¶ 32. 82-96.) This is insufficient for the Court to infer that Defendant
9 CarMax was aware of defects in the vehicle that did not appear until several months after it was
10 purchased.

California courts have expressly rejected the argument that “a latent defect,

11 discovered outside the limits of a written warranty, may form the basis for a valid express
12 warranty claim if the warrantor knew of the defect at the time of sale.”

Daugherty, 144

13 Cal.App.4th at 830. In Daughterty, the court considered whether an express warranty claim can
14 be based on repairs that occurred after the warranty had expired. 144 Cal.App.4th at 829. The
15 general rule in California is that an express warranty “does not cover repairs made after the
16 applicable time or mileage periods have elapsed.” Id. at 830. The court considered that the
17 plaintiff had not brought an implied warranty claim, and found “as a matter of law, in giving its
18 promise to repair or replace any part that was defective in material or workmanship and stating
19 the car was covered for three years or 36,000 miles, Honda ‘did not agree, and plaintiffs did not
20 understand it to agree, to repair latent defects that lead to a malfunction after the term of the
21 warranty.’ ” Id. at 123.
22

Similar to Daughterty, Defendant CarMax express warranty covered 100% of the labor

23 and 100% of the parts for the covered systems that failed during the thirty day period after
24 purchase of the vehicle. Plaintiffs have not alleged that any malfunctions occurred during the
25 warranty period and specifically alleged that the vehicle malfunctions appeared after the
26 warranty had expired. As Plaintiffs have not alleged any facts that the vehicle had problems or
27 any covered systems failed within the express warranty period, the first amended complaint fails
28 to state a cognizable claim against Defendant CarMax for breach of the express warranty under

13

1 the Song-Beverly Act. See Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir.
2 2008) (affirming dismissal of breach of express warranty claims where defects arose after the
3 expiration of express warranty). The Court finds that amendment of this claim would be futile
4 and it shall be dismissed without leave to amend.
Second Cause of Action – Breach of Implied Warranty of Merchantability

5

2.

6

Defendant states that the implied warranty of merchantability does not require that the

7 vehicle be perfect or problem free, but that it will function for its intended purpose. Defendant
8 CarMax contends that Plaintiffs have failed to plead any facts that they were unable to use the
9 vehicle during the implied warranty’s duration. Further, Defendant CarMax argues that Plaintiff
10 have failed to allege any impingement on the use of the subject vehicle other than their choice
11 not to drive it.
12

Plaintiff counters that Defendant CarMax attempts to misdirect the Court as to the proper

13 legal standard. Further, Plaintiffs argue that where the consumer’s expectations are established
14 by Defendant CarMax’s advertising that it rigorously inspected the vehicle, the fact that the
15 vehicle actually manifested defects and was not in safe condition and substantially free from
16 defects when it was sold to Plaintiffs states a claim for breach of the implied warranty of
17 merchantability.
18

Defendant CarMax replies that the cases cited by Plaintiffs all demonstrate that the

19 implied warranty of merchantability provides for a “minimum level of quality” and that the
20 motion to dismiss is not misleading. Further, Defendant CarMax contends that Plaintiffs have
21 alleged no facts to show that the vehicle was unsafe or could not provide reasonable
22 transportation.
23

Pursuant to the Song–Beverly Act, “every sale of consumer goods that are sold at retail in

24 this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that
25 the goods are merchantable.” Daniel, 806 F.3d at 1222 (quoting Cal. Civ. Code § 1792). This
26 implied warranty of merchantability means that the goods “(1) Pass without objection in the
27 trade under the contract description[;] (2) Are fit for the ordinary purposes for which such goods
28 are used[;] (3) Are adequately contained, packaged, and labeled[;] (4) Conform to the promises

14

1 or affirmations of fact made on the container or label.” Cal. Civ. Code § 1791.1(a). The implied
2 warranty of merchantability is coextensive in duration to the express warranty, but cannot be less
3 than 60 days nor more than one year following the sale of new consumer goods. Cal. Civ. Code
4 § 1791.1(c).
5

“Unlike express warranties, which are basically contractual in nature, the implied

6 warranty of merchantability arises by operation of law” and “provides for a minimum level of
7 quality.” American Suzuki Motor Corp. v. Superior Court, 37 Cal.App.4th 1291, 1295–96
8 (1995). Thus, to prevail on a breach of an implied warranty of merchantability claim, the
9 plaintiff must show that the product “did not possess even the most basic degree of fitness for
10 ordinary use.” Mocek v. Alfa Leisure, Inc., 114 Cal.App.4th 402, 406 (2003). Unlike a claim
11 for breach of an express warranty, the plaintiff need not provide the seller with an opportunity to
12 repair the defect for a breach of the implied warranty of merchantability claim. Mocek, 114
13 Cal.App.4th at 407.
14

“[T]he implied warranty of merchantability set forth in § 1791.1(a) requires only that a

15 vehicle be reasonably suited for ordinary use. It need not be perfect in every detail so long as it
16 ‘provides for a minimum level of quality.’ ” Keegan v. Am. Honda Motor Co., 838 F.Supp.2d
17 929, 945 (C.D. Cal. 2012) (citations omitted). The basic inquiry is whether the vehicle is fit for
18 driving. Keegan, 838 F.Supp.2d at 945.
19

Plaintiffs allege that within a few months of purchasing the vehicle it experienced

20 defective conditions, such as engine and/or drive-train malfunction and repeated warning lights.
21 (FAC ¶ 43.) In April 2015 the vehicle was serviced. (FAC ¶ 47.) In June 2015, the vehicle
22 battery was charged and the high pressure fuel pumps were replaced. (FAC ¶ 48.) In August
23 2015, Plaintiffs experienced shifting issues and the engine warning lights illuminated. (FAC 49.)
24 The service record noted the battery was charged, and review of the history showed high fuel
25 pressure plausibility faults, misfire faults, and low pressure fuel faults.

(FAC ¶ 49.)

In

26 September 2015, the engine malfunction light illuminated. (FAC ¶ 50.) In August 2016, the
27 engine malfunction light illuminated again. (FAC ¶ 51.)
28 / / /

15

1

Plaintiffs contend that the vehicle has defects that causes it to burn large quantities of oil,

2 the engine creates excess heat causing the engine components to fail prematurely, and there is
3 premature wear of the engine battery causing it to need to be replaced every 10,000 miles or one
4 year. (FAC ¶ 61.) Plaintiffs state that the oil consumption defect is unreasonably dangerous
5 because it can cause engine failure while the vehicle is in operation exposing the vehicle
6 occupants to risk of accident and injury. (FAC ¶ 63.)
7

The core test of whether a product is fit for its intended purpose is whether the product is

8 “in safe condition and substantially free from defects.” Isip v. Mercedes–Benz USA, LLC, 155
9 Cal.App.4th 19, 26 (2007). Courts in California “reject the notion that merely because a vehicle
10 provides transportation from point A to point B, it necessarily does not violate the implied
11 warranty of merchantability. A vehicle that smells, lurches, clanks, and emits smoke over an
12 extended period of time is not fit for its intended purpose.” Isip, 155 Cal.App.4th at 27.
13

While Plaintiffs state that the oil consumption defect could cause the engine to fail while

14 driving, the facts as alleged merely demonstrate that the vehicle has had multiple engine light
15 illuminations that have require servicing. (FAC ¶¶ 43, 46-51.) Defendant BMW issued a
16 technical service bulletin in December 2014 instructing dealerships to replace the battery at
17 every oil service covered under the BMW maintenance program. (FAC ¶ 68.) In January 2015,
18 the warranty on the fuel delivery module was extended, and in January 2016, the warranties were
19 extended on the engine vacuum pump and cylinder head covers crankcase ventilation hoses.
20 (FAC ¶ 69.) The allegations in the complaint plausibly allege that the vehicle may require more
21 frequent servicing and replacement of parts.

However, an increase in the frequency of

22 maintenance and/or of replacement of parts is insufficient to find a plausible contention that the
23 vehicle is not in a safe condition nor that it is not substantially free from defects for an implied
24 warrant claim. See Isip, 155 Cal.App.4th at 26; Keegan, 838 F.Supp.2d at 945; see also Acedo
25 v. DMAX, Ltd., No. CV1502443MMMASX, 2015 WL 12912365, at *21-23 (C.D. Cal. July 31,
26 2015)(allegation that vehicle had reduced fuel economy and vehicle utility, and that engine
27 defects resulted in frequent regeneration cycles that hindered ability to drive from point A to
28 point B on short trips insufficient to demonstrate that the vehicle did not meet the minimum level

16

1 of quality contemplated by the Song-Beverly Act).
2

Plaintiffs have not alleged facts sufficient to demonstrate that the vehicle is unfit for its

3 intended purpose. Therefore, the Court finds that Plaintiffs have failed to state a claim for breach
4 of the implied warranty of merchantability.
Third and Fourth Causes of Action – Consumers Legal Remedies Act and UCL

5

3.

6

Since Plaintiffs’ UCL claim arises under the conduct precluded by the CLRA, the Court

7 shall evaluate the alleged CLRA and UCL claims together.
Pleading Standard to Apply to Plaintiffs’ Claims

8

a.

9

Defendant CarMax argues that since Plaintiffs bring this action under the CLRA alleging

10 misrepresentations the heightened pleading standard of Rule 9 applies. Plaintiff responds that
11 not all actions brought under the CLRA must meet the Rule 9 pleading standard.
12

Generally, to state a claim, a complaint must contain “a short and plain statement of the

13 claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). However, when
14 “alleging fraud or mistake, a party must state with particularity the circumstances constituting
15 fraud or mistake.” Fed. R. Civ. P. 9(b).
16

In a case where fraud is not a necessary element of the claim, “the plaintiff may allege a

17 unified course of fraudulent conduct and rely entirely on that course of conduct as the basis of a
18 claim. In that event, the claim is said to be ‘grounded in fraud’ or to ‘sound in fraud,’ and the
19 pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b).” Vess
20 v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103–04 (9th Cir. 2003). However, in other cases,
21 the plaintiff may choose to allege some fraudulent and some non-fraudulent conduct to support a
22 claim. Vess, 317 F.3d at 1104. In that instance, only the allegations of fraud are subject to the
23 the heightened pleading requirements of Rule 9. Id. “Fraud can be averred by specifically
24 alleging fraud, or by alleging facts that necessarily constitute fraud (even if the word ‘fraud’ is
25 not used).” Id. at 1105.
26

In a case similar to this, the Ninth Circuit considered the pleading standard to be used in

27 claims under the CLRA and UCL where the plaintiff alleged a car dealer used a certification
28 process to mislead customers to purchase vehicles. Kearns v. Ford Motor Co., 567 F.3d 1120,

17

1 1123 (9th Cir. 2009). The court decided that Rule 9(b)’s heightened pleading standard applied to
2 the claims for violations of the CLRA and UCL. Kearns, 567 F.3d at 1125. While fraud is not a
3 necessary element of a claim under the CLRA or UCL, a claim that a defendant engaged in a
4 unified course of fraudulent conduct is grounded in fraud and the complaint as a whole must
5 satisfy the particularity pleading requirement of Rule 9(b). Id. at 1125; Vess, 317 F.3d at 1104.
6

While Plaintiffs are correct that the CLRA is not a fraud statute, the issue here is whether

7 the first amended complaint alleges a unified course of fraudulent conduct and relies entirely on
8 that conduct to state a claim.

Under California law, the elements for fraud are “(a)

9 misrepresentation (false representation, concealment, or nondisclosure ); (b) knowledge of falsity
10 (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)
11 resulting damage.” Kearns, 567 F.3d at 1126 (quoting Engalla v. Permanente Med. Group, Inc.,
12 15 Cal.4th 951, 974 (Cal.1997)).
13

Here, Plaintiffs allege that Defendant CarMax represented that the vehicle had passed a

14 “rigorous 125-Point Quality Inspection” and that it had been inspected for defects, was certified
15 to be free from defects, and was sold with a warranty. (FAC ¶¶ 150, 151.) Defendant CarMax
16 did not provide Plaintiffs with a completed vehicle inspection report. (FAC ¶ 152.) Defendant
17 CarMax knew or should have known of the defective condition of the vehicle, specifically of the
18 engine and/or drive-train malfunction and defects. (FAC ¶ 153.) Defendant CarMax failed to
19 disclose and concealed material information concerning the actual quality and condition of the
20 vehicle to Plaintiffs to induce them to purchase the vehicle and the contract amount to Defendant
21 CarMax. (FAC ¶ 154.) Defendant CarMax misrepresented the benefits and use its quality
22 vehicle inspection by failing to inspect the vehicle history and status for any open manufacturer
23 recalls. (FAC ¶ 155.)
24

Further, Plaintiffs allege they relied on Defendant CarMax’s advertising and

25 representations as to the quality and character of the vehicle. (FAC ¶ 156.) Plaintiffs also allege
26 they relied on the warranties and certifications of the vehicle in deciding to purchase it and
27 would not have purchased the vehicle if they knew it did not conform to the warranties and
28 certifications.

(FAC ¶¶ 157, 158.)

Plaintiffs state that Defendants CarMax and BMW

18

1 misrepresented and concealed the status and condition of the vehicle and baited Plaintiffs with
2 the particular status, quality, and condition but switched to a vehicle of another status, quality or
3 status. (FAC ¶¶ 159, 160, 162, 163, 164.)
4

Here, Plaintiffs allege that Defendants made false representations, concealed information,

5 and failed to disclose material facts as to the condition of the vehicle to induce them to pay the
6 purchase price, they would not have otherwise purchased the vehicle, and they suffered
7 economic damages as a result. Similar to Kearns, Plaintiffs have alleged that the defendants
8 engaged in a unified course of fraudulent conduct that is grounded in fraud and the claims under
9 the CLRA and UCL in this action must satisfy the particularity pleading requirement of Rule
10 9(b). Kearns, 567 F.3d at 1126.
11

b.

Plaintiffs have failed to plead the CLRA and UCL claims with particularity

12

1.

Demand Requirement

13

Initially, Defendant CarMax alleges that Plaintiffs CLRA action is invalid on its face

14 because Plaintiffs filed this action prior to thirty days after sending a demand letter as required
15 by the statute. Plaintiffs respond that they did not seek damages for the CLRA claim in the
16 original complaint and since the first amended complaint was filed more than thirty days after
17 the demand letter was sent damages were properly included in the first amended complaint.
18

The CLRA provides that a merchant has thirty days to respond to a demand for

19 correction. Cal. Civ. Code § 1782. No action for damages may be maintained if an appropriate
20 correction, repair, replacement, or other remedy is given within a reasonable time within thirty
21 days after receipt of the demand. Cal. Civ. Code § 1782(b). However, an action for injunctive
22 relief can be commenced without the demand for correction. Cal. Civ. Code § 1782(d). The
23 Plaintiffs’ complaint was filed on February 17, 2017, and only sought injunctive relief on the
24 CLRA cause of action. (ECF No. 1-1 at p. 18.) Plaintiffs’ complaint did not violate the
25 provisions of the CLRA when it was filed.
26

The CLRA also provides that the appropriate provisions of the statute are applicable if

27 the complaint is amended to request damages. Cal. Civ. Code § 1782(d). When the plaintiff
28 files a complaint seeking only injunctive relief under the CLRA, not less than thirty days after

19

1 filing the complaint and after complying with the notice provision, the plaintiff may amend his
2 complaint to include a request for damages. Cattie v. Wal-Mart Stores, Inc., 504 F. Supp. 2d
3 939, 949 (S.D. Cal. 2007). However, if the plaintiff sought damages in the original complaint
4 filed, then the defect could not be cured by later providing notice and filing an amended
5 complaint. Id. at 950. Plaintiffs filed the first amended complaint, adding the request for
6 damages on August 15, 2017, more than thirty days after filing suit and sending the demand
7 letter. Plaintiffs have complied with the CLRA in filing their amended complaint and Defendant
8 CarMax’ motion is denied on this ground.
9
10

2.

The first amended complaint fails to state a CLRA or UCL claim

The CLRA provides a list of unfair methods of competition and unfair or deceptive acts

11 or practices that are unlawful if taken with the intended result or that result in the sale or lease of
12 goods or services to a consumer. Civ. Code § 1770. Conduct that is likely to mislead a
13 reasonable consumer violates the CLRA.

Colgan v. Leatherman Tool Group, Inc., 135

14 Cal.App.4th 663, 680 (2006). “The CLRA is to be ‘liberally construed and applied to promote
15 its underlying purposes, which are to protect consumers against unfair and deceptive business
16 practices and to provide efficient and economical procedures to secure such protection.’ ”
17 Colgan, 135 Cal. App. 4th at 680 (citations omitted.)
18

The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and

19 unfair, deceptive, untrue or misleading advertising.” Bus. & Prof. Code § 17200. “An act can be
20 alleged to violate any or all three of the prongs of the UCL—unlawful, unfair, or fraudulent.”
21 Stearns v. Select Comfort Retail Corp., 763 F.Supp.2d 1128, 1149 (N.D. Cal. 2010) (quoting
22 Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1554 (2007)). Plaintiffs contend
23 that Defendant’s conduct violates all three prongs of the UCL. (FAC ¶¶ 178-180.)
24

As the claim in this action is grounded in fraud, Plaintiffs are required to meet the

25 pleading requirements of Rule 9 which requires more specificity including an account of the
26 time, place, and specific content of the false representations as well as the identities of the parties
27 to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal
28 punctuation and citations omitted).

20

1

Plaintiffs argue that they have pleaded the claim with particularity as they allege “the

2 BMW Vehicle was advertised and certified to have been rigorously inspected by CarMax (an
3 undisputed fact), passed that inspection, and certified by CarMax to be of a higher quality than
4 other non-certified vehicles, when it is alleged that it was in fact defective at the time of sale
5 based on subsequent manifestation of mechanical issues and defects.” (ECF No. 30 at 23.)
6 However, Plaintiff does not identify the time and place of the alleged misrepresentations or who
7 the alleged misrepresentations were made by.

While Plaintiffs allege that the vehicle was

8 advertised and certified to have been rigorously inspected, they do not state how it was
9 advertised or when or where they saw the advertisement. Did Plaintiffs see an advertisement for
10 the vehicle on television, in the newspaper, on-line, or in the lot? Are Plaintiffs relying on
11 statements that were contained in written advertising or did the sales professional make the
12 representations?

Plaintiffs failure to identify the specific advertisements does not provide

13 Defendant CarMax with adequate notice of the the alleged violations of the CLRA. In re Sony
14 Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F.Supp.2d
15 1077, 1093 (S.D. Cal. 2010). The Court finds that first amended complaint fails to meet the
16 pleading requirements of Rule 9.
17

“When a complaint or claim that is grounded in fraud fails to meet the heightened

18 pleading requirements of Rule 9, the complaint or claim may be dismissed. Vess, 217 F.3d at
19 1107. As with dismissals pursuant to Rule 12(b)(6) the dismissal should be without prejudice if
20 it appears that the pleading could be cured by amendment. Id. at 1108. Plaintiffs’ claims for
21 violation of the CLRA and UCL are dismissed with leave to amend for failure to state a claim.
22

C.

Motion to Strike

23

Defendant CarMax moves to strike portions of Plaintiffs’ first amended complaint

24 specifically, Defendant CarMax argues that Plaintiffs are not entitled to a civil penalty, punitive
25 damages, or injunctive relief. In response, Plaintiffs agree to withdraw their requests for a civil
26 penalty, punitive damages, and injunctive relief. Defendant CarMax replies that since Plaintiffs
27 have conceded the motion to strike it should be granted in its entirety.
28 / / /

21

1

As Plaintiffs have agreed to withdraw their requests for a civil penalty, punitive damages,

2 and injunctive relief, Defendant CarMax’ motion to strike shall be granted.
3

V.

4

CONCLUSION AND ORDER

5

Based on the foregoing, IT IS HEREBY ORDERED that:

6

1.

Defendant CarMax’s motion to dismiss is GRANTED as follows:

7

a.

The first cause of action is DISMISSED without leave to amend as to Defendant
CarMax;

8
9

b.

The second, third, and fourth causes of action are DISMISSED with leave to
amend for failure to state a claim;

10
11

2.

Defendant CarMax’s motion to strike is GRANTED as follows:

12

a.

Plaintiffs’ request for a civil penalty pursuant to Civil Code § 1794(c) as set forth

13

in the first cause of action, FAC ¶¶ 122 and 125, as well as in the prayer (26:22-

14

23), and wherever else referenced in the FAC is STRICKEN from the first

15

amended complaint;

16

b.

(27:10) is STRICKEN from the first amended complaint; and

17
18

c.

3.

23

Plaintiffs shall file a second amended complaint within fourteen (14) days from
the date of entry of this order;

21
22

Plaintiffs’ request for injunctive relief as set forth in FAC ¶ 171 and the prayer
(27:12-14) is STRICKEN from the first amended complaint;

19
20

Plaintiffs’ request for punitive damages as set forth in FAC ¶ 170 and the prayer

4.

Within twenty (20) days of the date of service of the second amended complaint,
Defendants CarMax and BMW shall file a responsive pleading; and

24 / / /
25 / / /
26 / / /
27 / / /
28 / / /

22

5.

1

If Plaintiffs fail to file a second amended complaint in compliance with this order,

2

this action will proceed on the first amended complaint against Defendant BMW

3

on the first cause of action.

4
5

IT IS SO ORDERED.

6 Dated:

October 3, 2017
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

23