Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 1 of 14 Page ID #:169 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 SHARON JEAN SHUBIN, 2:22-cv-2748-RSWL-AGRx

13 Plaintiff, ORDER re:

DE FENDANT UVC’S MOTION

14 v. TO DISMISS [13] 15 UNIVERSAL VACATION CLUB et 16 al., 17 Defendants. 18 19 Sharon Jeanne Shubin (“Plaintiff”) brings this 20 Action against Universal Vacation Club (“Defendant 21 UVC”), Villa Group Hotel and Resorts, S.A. de C.V. in 22 Puerto Vallarta (“Villa Group”), and Villa del Arco 23 Beach Resort and Spa Cabo San Lucas (“Villa del Arco” or 24 the “Resort”), alleging: (1) negligence; and (2) breach 25 of express and implied warranties. Currently before the 26 Court is Defendant UVC’s Motion to Dismiss (“Motion”) 27 [13]. 28 1 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 2 of 14 Page ID #:170

1 Having reviewed all papers submitted pertaining to

2 the Motion, the Court NOW FINDS AND RULES AS FOLLOWS:

3 the Court GRANTS Defendant UVC’s Motion. 4 I. BACKGROUND 5 A. Factual Background 6 Plaintiff alleges the following in her Complaint: 7 Plaintiff is an individual domiciled in Idaho. 8 Compl. ¶ 3, ECF No. 1. Defendant UVC is an 9 international corporation which conducts business in 10 California and is headquartered in Nevada. Id. ¶ 4. 11 Defendant UVC is a vacation ownership management 12 company serving as the homeowners’ association for the 13 Resort. Id. The Resort is a timeshare hotel located in 14 Cabo San Lucas, Mexico and is governed by Defendant 15 Villa Group. Id. ¶ 5. 16 Plaintiff reserved a stay at the Resort for 17 November 2019. Id. ¶¶ 8, 12. Upon her arrival, 18 Plaintiff was shown to her suite, which was equipped 19 with a heavy wall bed (the “Murphy Bed”), a bed 20 containing lifting components that folds up into the 21 wall when not in use. Id. ¶ 13. On November 25, 2019, 22 Plaintiff was in her suite, lowering the Murphy Bed, 23 when it fell out of the wall and landed on the lower 24 part of her body. Id. ¶¶ 14-15. 25 As a result of the incident, Plaintiff sustained 26 leg injuries and received medical services at both a 27 hospital in Cabo San Lucas, Mexico and later in Boise, 28 Idaho. Id. ¶¶ 19-24. 2 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 3 of 14 Page ID #:171

1 B. Procedural Background

2 Plaintiff filed her Complaint [1] in this Court on

3 April 25, 2022, alleging: (1) negligence; and (2) breach 4 of implied and express warranties. 5 Defendant UVC filed the instant Motion [13] on June 6 3, 2022. Plaintiff filed her Opposition [17] on June 7 14, 2022, and Defendant UVC replied [19] on June 21, 8 2022. 9 II. DISCUSSION 10 A. Legal Standard 11 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 12 allows a party to move for dismissal on one or more 13 claims if a pleading fails to state a claim upon which 14 relief can be granted. Fed. R. Civ. P. 12(b)(6). Under 15 Rule 8(a), a complaint must contain “a short and plain 16 statement of the claim showing that the pleader is 17 entitled to relief” to give the defendant “fair notice 18 of what the . . . claim is and the grounds upon which it 19 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 20 (2007); see also Fed. R. Civ. P. 8(a). Dismissal is 21 proper “where the complaint lacks a cognizable legal 22 theory or sufficient facts to support a cognizable legal 23 theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 24 F.3d 1097, 1104 (9th Cir. 2008) (citing Balistreri v. 25 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 26 1988)). 27 “To survive a motion to dismiss, a complaint must 28 contain sufficient factual matter, accepted as true, to 3 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 4 of 14 Page ID #:172

1 ‘state a claim to relief that is plausible on its

2 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

3 (quoting Twombly, 550 U.S. at 570). While a complaint 4 need not contain detailed factual allegations, it must 5 provide more than “labels and conclusions” or “a 6 formulaic recitation of the elements of a cause of 7 action.” Twombly, 550 U.S. at 555. The plaintiff must 8 allege enough facts “to raise a right to relief above 9 the speculative level.” Id. In evaluating a Rule 10 12(b)(6) motion, a court must take all well-pleaded 11 allegations of material fact as true and construe them 12 in the light most favorable to the nonmovant. Great 13 Minds v. Off. Depot, Inc., 945 F.3d 1106, 1109 (9th Cir. 14 2019). A court may generally consider only “the 15 complaint itself and its attached exhibits, documents 16 incorporated by reference, and matters properly subject 17 to judicial notice.” In re NVIDIA Corp. Sec. Litig., 18 768 F.3d 1046, 1051 (9th Cir. 2014). 19 B. Discussion 20 Defendant UVC argues that the Complaint should be 21 dismissed in its entirety because it is barred by the 22 applicable statute of limitations. Mot. to Dismiss 23 (“Mot.”) 4:4-7, ECF No. 13. Defendant UVC additionally 24 argues that dismissal is warranted because Plaintiff’s 25 claims are inadequately pled. Id. at 5:3-7:15. The 26 Court finds that: (1) Plaintiff’s negligence claim is 27 barred by the applicable statute of limitations; and (2) 28 Plaintiff’s claims for breach of implied and express 4 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 5 of 14 Page ID #:173

1 warranties are inadequately pled. The Court therefore

2 GRANTS Defendant UVC’s Motion and need not discuss

3 Plaintiff’s request for attorneys’ fees. 4 1. Plaintiff’s Negligence Claim is Time-Barred by 5 the Statute of Limitations Set Forth in Article 6 1934 of the Mexican Civil Code 7 In diversity cases, federal courts must apply the 8 choice-of-law rules of the forum state. Ledesma v. Jack 9 Steward Produce, Inc., 816 F.2d 482, 484 (9th Cir. 10 1987). Because the present case is a diversity action 11 and the Court is in California, California’s choice-of- 12 law rules apply. See id. 13 Under California’s choice-of-law rules, where a 14 cause of action arises in a foreign country, and the 15 action is time-barred under the laws of the foreign 16 country, such action cannot be brought in California 17 unless brought by a California citizen who has held the 18 cause of action from the time it accrued. Cal. Civ. 19 Proc. Code § 361 (West 2022). Here, Plaintiff is an 20 Idaho resident and her cause of action stems from 21 alleged incidents that occurred in Cabo San Lucas, 22 Mexico. Compl. 2:6-9, ¶ 3. As such, because Plaintiff 23 is not a California citizen, Plaintiff may only bring 24 this lawsuit in California if permitted under the laws 25 of Mexico. 26 Under Mexican law, the statute of limitations for 27 tort actions, such as the negligence claim here, is two 28 years from the date the alleged injury occurred. Código 5 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 6 of 14 Page ID #:174

1 Civil [CC], art. 1934, Diario Oficial de la Federación

2 [DOF] 26-05-1928, últimas reformas DOF 24-12-2013; see

3 also Banco De Mex. V. Orient Fiseries, Inc., 680 F. 4 Supp. 2d 1132, 1145 (C.D. Cal. 2010). Plaintiff’s 5 injuries stem from an incident that occurred on November 6 25, 2019. Compl. 2:6-9. Thus, the statute of 7 limitations for Plaintiff’s negligence claim ran on 8 November 25, 2021. However, Plaintiff did not file this 9 Action until April 25, 2022. Id. Because Plaintiff did 10 not timely file her Complaint, her negligence claim is 11 time-barred, and this Court DISMISSES Plaintiff’s 12 negligence claim. Cf. G & G Prods. LLC v. Rusic, 902 13 F.3d 940, 947 (9th Cir. 2018). 14 a. California Emergency Rule 9 Does Not Apply 15 to Save Plaintiff’s Negligence Claim from 16 Dismissal 17 To avoid dismissal, Plaintiff asks this Court to 18 apply California’s Emergency Rule 9. Opp’n 2:1-5, ECF 19 No. 17. The California Judicial Council adopted the 20 Emergency Rules on April 6, 2020, in light of the COVID- 21 19 pandemic. See Cal. Rules of Court, Emergency Rule 9. 22 In particular, Emergency Rule 9 tolled the statute of 23 limitations on the commencement of civil causes of 24 action brought in California courts.1 Id. Statutes of

25 1 Emergency Rule 9 states, in relevant part: 26 “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled 27 from April 6, 2020, until October 1, 2020.” Cal. Rules of Court, Emergency Rule 9. Although Emergency Rule 9 “is intended to 28 apply broadly,” it is unclear whether it applies in federal 6 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 7 of 14 Page ID #:175

1 limitations exceeding 180 days were tolled between April

2 6, 2020 and October 1, 2020. Id. (as amended May 29,

3 2020). Thus, if applied to this Action, Emergency Rule 4 9 would make Plaintiff’s April 25, 2022 filing timely. 5 The application of Emergency Rule 9 to a diversity 6 case in federal court presents a novel issue. 7 California federal courts have been hesitant to apply 8 Emergency Rule 9, at least in cases exercising federal 9 question jurisdiction. See Goerss v. Pac. Gas & Elec. 10 Co., No. 21-CV-04485-EMC, 2021 WL 4932134, at *6 (N.D. 11 Cal. Oct. 18, 2021) (holding that plaintiff could “not 12 rely on the California-issued emergency rule . . . 13 because she [wa]s not in state court”); Harris v. 14 Restivo, No. 120VC00797EPGPC, 2020 WL 5439980, at *8, 15 n.3 (E.D. Cal. September 10, 2020) (“It is not clear 16 that [Emergency Rule 9] would apply to this federal 17 action.”); Sholes v. Cates, No. 121CV01006DADHBK, 2021 18 WL 5567381, at *5 (E.D. Cal. Nov. 29, 2021) (finding 19 Emergency Rule 9 inapplicable to a federal habeas 20 claim). This hesitancy in part stems from the fact that 21 Emergency Rule 9 was issued by the California Judicial 22 Council, and not any federal court or body. Goerss, 23 2021 WL 4932134, at *4; see also Sholes, 2021 WL 24 5567381, at *5 (“Emergency Rule 9 was promulgated . . . 25 to toll the statute of limitations for civil causes of 26 action in matters brought before California state

27 diversity cases. Cal. Rules of Court, Emergency Rule 9, Advisory 28 Comm. Comment. 7 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 8 of 14 Page ID #:176

1 courts.”) (emphasis added). For the following two

2 reasons, the Court similarly declines to apply Emergency

3 Rule 9 to the diversity action here. 4 First, because California’s choice-of-law rules 5 mandate that the Mexican statute of limitations applies 6 to Plaintiff’s negligence claim, a California tolling 7 provision cannot be extended to these circumstances. 8 Indeed, Plaintiff does not argue that Emergency Rule 9 9 should be applied to the Mexican statute of limitations. 10 Plaintiff instead asks this Court to apply the 11 California statute of limitations in the first place, 12 altogether disregarding the choice-of-law rules set 13 forth in Section 361 of the California Code of Civil 14 Procedure. Opp’n 1:12-28. But because this Court sits 15 in diversity and Plaintiff is an Idaho resident, the 16 Court applies Section 361 and thereby applies the 17 Mexican statute of limitations without the California 18 tolling rule. See Hatfield v. Halifax PLC, 564 F.3d 19 1177, 1189-90 (9th Cir. 2009) (finding that non- 20 residents “certainly should not be permitted to take 21 advantage of the state’s tolling doctrine” when their 22 claims are time-barred under Section 361); see also G & 23 G Prods., 902 F.3d at 946-47 (internal quotations and 24 citation omitted) (“[A]s a matter of policy, there is no 25 sound reason why a[] [plaintiff] should be entitled to 26 recover in the forum if his action has been fully barred 27 by the law of the [forum] in which it arose.”). 28 8 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 9 of 14 Page ID #:177

1 Second, no evidence indicates that Plaintiff needed

2 additional time to file this Action due to the COVID-19

3 pandemic, so the circumstances do not warrant 4 application of the equitable tolling provision. Because 5 Emergency Rule 9 was promulgated in response to 6 difficulties resulting from the COVID-19 pandemic, 7 courts determining the application of Emergency Rule 9 8 have considered whether a plaintiff faced any 9 extraordinary circumstances due to COVID-19 that 10 prevented the timely filing of their lawsuit. See 11 Goerss, 2021 WL 4932134, at *4 (holding that, to rely on 12 Emergency Rule 9, plaintiff “would have to explain how 13 the pandemic could justify her not filing” in time); 14 Sholes, 2021 WL 5567381, at *5 (finding Emergency Rule 9 15 inapplicable where plaintiff failed to demonstrate “that 16 the reasons he cite[d] [for applying Emergency Rule 9] 17 constitute[d] extraordinary circumstances”). Here, 18 Plaintiff has not alleged that the COVID-19 pandemic 19 impeded her ability to file her claims in a timely 20 manner, nor has she pled any other extraordinary 21 circumstances that warrant application of the Emergency 22 Rule 9 equitable tolling provision. 23 In sum, the Court finds that California Emergency 24 Rule 9 does not apply to toll the statute of limitations 25 on Plaintiff’s negligence claim here. The Court 26 therefore GRANTS Defendant UVC’s Motion as to 27 Plaintiff’s negligence claim. 28 /// 9 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 10 of 14 Page ID #:178

1 2. Plaintiff’s Breach of Warranty Claims are

2 Inadequately Pled2

3 Plaintiff additionally brings claims for breach of 4 implied and express warranties. Both claims are 5 inadequately pled and warrant dismissal for the reasons 6 below. 7 a. Breach of Implied Warranty 8 In arguing that there “was a warranty that the 9 furniture in [Plaintiff’s] room was fit for use and 10 occupation,” Plaintiff appears to invoke the implied 11 warranty of habitability. See Opp’n 8:4-6. To state a 12 claim for breach of the implied warranty of 13 habitability, a plaintiff must show: (1) the existence 14 of a materially defective condition affecting 15 habitability; (2) notice to the landlord of the 16 condition within a reasonable time after the tenant’s 17 discovery of the condition; and (3) the landlord was 18 given a reasonable time to correct the deficiency and 19 resulting damages. Ghazaryan v. Shabazian, No. 20 LACV1708245JAKSSX, 2018 WL 6190347, at *5 (C.D. Cal. 21 Aug. 2, 2018) (citing Erlach v. Sierra Asset Servicing, 22 LLC, 226 Cal. App. 4th 1281, 1297 (2014)). 23

24 2 While Defendant UVC has shown that the two-year Mexican statute of limitations applies to any tort claims brought by Plaintiff, it is 25 unclear whether the same limitations period applies to Plaintiff’s 26 breach of warranty claims. For this reason, the Court declines to extend the two-year Mexican statute of limitations to Plaintiff’s 27 breach of warranty claims at this time. Instead, the Court analyzes Plaintiff’s breach of warranty claims under the 12(b)(6) pleading 28 standard. 10 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 11 of 14 Page ID #:179

1 Wholly absent from Plaintiff’s Complaint is any

2 discussion of these elements. Instead, Plaintiff only

3 argues, in a conclusory fashion, that because she was 4 provided with a hotel room, Defendant UVC impliedly 5 warranted the safety and fitness of the room. See 6 Compl. ¶ 37. This is insufficient to overcome dismissal 7 under 12(b)(6). See Twombly, 550 U.S. at 555 (noting 8 that to survive dismissal, a complaint must contain 9 “more than labels and conclusions” or “a formulaic 10 recitation of the elements of a cause of action”). 11 Plaintiff also fails to allege that a landlord- 12 tenant relationship existed between herself and 13 Defendant UVC to trigger the implied warranty of 14 habitability in the first place. See Ghazaryan, 2018 WL 15 6190347, at *4 (noting that a tenant may state a cause 16 of action against his landlord for damages resulting 17 from a breach of the implied warranty of habitability). 18 Again, the only allegations Plaintiff brings to support 19 her breach of implied warranty claim are that she was 20 provided with a hotel room at the Resort, and the hotel 21 “affirmed” that the Murphy Bed was not defective. See 22 Opp’n 8:14-16. Besides broad, conclusory allegations 23 that an implied warranty indeed existed between 24 Plaintiff and Defendant UVC and that Defendant UVC 25 breached said warranty, Plaintiff has not pled facts “to 26 raise a right to relief above [a] speculative level.” 27 See Twombly, 550 U.S. at 555. The Court therefore 28 DISMISSES Plaintiff’s breach of implied warranty claim. 11 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 12 of 14 Page ID #:180

1 b. Breach of Express Warranty

2 Similarly deficient is Plaintiff’s breach of

3 express warranty claim. “In order to plead a cause of 4 action for breach of express warranty, one must allege 5 the exact terms of the warranty, plaintiff’s reasonable 6 reliance thereon, and a breach of that warranty which 7 proximately causes plaintiff injury.” Watkins v. MGA 8 Ent., Inc., 550 F. Supp. 3d 815, 830 (N.D. Cal. 2021) 9 (internal quotation marks and citations omitted). “To 10 adequately allege the exact terms of an express 11 warranty, a plaintiff must identify a specific and 12 unequivocal written statement relating to the title, 13 character, quality, identity, or condition of the sold 14 goods.” Id. (internal quotation marks and citations 15 omitted). 16 Plaintiff fails to state a claim for breach of 17 express warranty. Beyond broadly alleging that an 18 express warranty existed between herself and Defendant 19 UVC, Plaintiff has not stated the exact terms of the 20 warranty, nor has she identified a specific written 21 statement relating to the warranted condition of her 22 hotel room. Plaintiff states only that Defendant UVC 23 “expressly . . . warranted that . . . the Resort would . 24 . . be in good condition and would be reasonably safe 25 from dangerous conditions such as the collapsing Murphy 26 Bed . . . .” Compl. ¶ 36. Perhaps sensing that her 27 breach of express warranty claim is speculative, 28 Plaintiff further refers to a case from 1888 to argue 12 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 13 of 14 Page ID #:181

1 that a warranty, whether implied or express, may exist

2 between a hotel and its patrons even if the word

3 “warrant” is not explicitly used in conversation between 4 the parties. Id. ¶ 35. This is beside the point. 5 Again, Plaintiff has neither shown that Defendant UVC 6 expressly warranted the safety of Plaintiff’s hotel 7 room, nor identified any terms of such warranty. 8 Accordingly, Plaintiff has not adequately pled her 9 breach of express warranty claim, and this Court 10 DISMISSES the claim. 11 c. Leave to Amend 12 “The court should give leave [to amend] freely when 13 justice so requires.” Fed. R. Civ. P. 15(a)(2). In the 14 Ninth Circuit, “Rule 15’s policy of favoring amendments 15 to pleadings should be applied with ‘extreme 16 liberality.’” United States v. Webb, 655 F.2d 977, 979 17 (9th Cir. 1981). Against this liberal standard, the 18 Court may consider “the presence of any of four factors: 19 bad faith, undue delay, prejudice to the opposing party, 20 and/or futility.” Owens v. Kaiser Found. Health Plan, 21 Inc., 244 F.3d 708, 712 (9th Cir. 2001). 22 Given that Plaintiff’s negligence claim is time- 23 barred, amendment would be futile. The Court thus 24 DISMISSES Plaintiff’s negligence claim without leave to 25 amend. See Djukich v. AutoNation Inc., No. 26 CV1304455BROAGRX, 2013 WL 12372182, at *3 (C.D. Cal. 27 Oct. 11, 2013) (dismissing time-barred claims with 28 prejudice because repleading the claims would have been 13 Case 2:22-cv-02748-RSWL-AGR Document 21 Filed 08/18/22 Page 14 of 14 Page ID #:182

1 futile). 2 As for Plaintiff’s remaining breach of warranty

3 claims, the Court gives Plaintiff leave to amend 4 considering Rule 15’s extremely liberal standard. For 5 the sake of clarity, the Court GRANTS leave to amend as 6 to Plaintiff’s breach of implied warranty and breach of 7 express warranty claims only. 8 III. CONCLUSION 9 Based on the foregoing, the Court GRANTS Defendant 10 UVC’s Motion to Dismiss. The Court notes that this 11 Motion was brought only by Defendant UVC and therefore 12 the disposition of this Order has no bearing on 13 Defendants Villa Group and Villa del Arco. Plaintiff’s 14 negligence claim is DISMISSED without leave to amend. 15 Plaintiff’s breach of implied and express warranty 16 claims are DISMISSED with leave to amend. Plaintiff may 17 file a First Amended Complaint to cure the deficiencies 18 outlined above within thirty (30) days of this Order. 19 IT IS SO ORDERED. 20 21 22 23 DATED: August 18, 2022 _____/_s/_ R_o_na_ld_ S_._W_. _Le_w_____________

HONORABLE RONALD S.W. LEW

24 Senior U.S. District Judge 25 26 27 28 14