Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 1 of 9 Page ID #:261

1 'O' 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 21-2671-RSWL-JC x 12 KRYSTLE MONIQUE EDWARDS, ORDER re: MOTION FOR 13 Plaintiff,

SUMMARY JUDGMENT [22] AND

14 v. REQUEST FOR JUDICIAL

NOTICE [23]

15

MERCEDES-BENZ USA, LLC, ET

16 AL., 17 Defendants. 18 19 Plaintiff Krystle Monique Edwards (“Plaintiff”) 20 brings this Action, asserting a claim for violation of 21 express warranty under the Song-Beverly Consumer 22 Warranty Act. Currently before the Court is Defendant 23 Mercedes Benz, LLC’s (“Defendant”) Motion for Summary 24 Judgment and Request for Judicial Notice. Plaintiff 25 failed to file an opposition or an objection. Having 26 reviewed all papers submitted pertaining to the Motion 27 /// 28 1 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 2 of 9 Page ID #:262

1 and the Request, the Court NOW FINDS AND RULES AS

2 FOLLOWS: the Court GRANTS Defendant’s Motion for Summary

3 Judgment and DENIES Defendant’s Request for Judicial 4 Notice. 5 I. BACKGROUND 6 A. Factual & Procedural Background 7 Plaintiff purchased a used 2017 Mercedes-Benz B250E 8 from non-party Mercedes-Benz of Beverly Hills1 on or 9 about October 17, 2020. Def.’s Stmt of Uncontroverted 10 Facts ¶ 1, ECF No. 22-1.2 On February 19, 2021, 11 Plaintiff filed a Complaint in Los Angeles Superior 12 Court alleging that Defendant breached an express 13 warranty on her vehicle in violation of the Song-Beverly 14 Consumer Warranty Act. Compl. ¶ 17-26, ECF No. 1-1. 15 In support of her claim, Plaintiff asserted that 16 her vehicle required service at least twice for coolant 17 issues, a defective cooling system, ongoing engine 18 19 1 Defendant is the original manufacturer and/or distributor of Plaintiff’s vehicle prior to its resale. Def.’s Mot. for 20 Summ. J. at 5, ECF No. 22. Plaintiff asserts, and Defendant does 21 not explicitly dispute, that Mercedes-Benz of Beverly Hills is an agent or employee of Defendant. Compl. ¶¶ 5-9; See generally 22 Answer, ECF No. 11; Def.’s Mot. for Summ. J. 2 The Court relies on Defendant’s Statement of 23 Uncontroverted Facts [22-1] as Plaintiff has not disputed the 24 facts stated therein. See C.D. Cal. L.R. 56-3 (“the Court may assume that the material facts as claimed and adequately 25 supported by the moving party are admitted to exist without controversy except to the extent such facts are . . . 26 controverted by [] written evidence filed in opposition to the motion.”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 27 (1986) (A fact is considered controverted only where a “genuine” 28 factual dispute exists.). 2 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 3 of 9 Page ID #:263

1 malfunctions, and because the vehicle shut down while

2 driving. Id. ¶ 21. She claimed that these problems

3 impaired the use and safety of her vehicle, and that her 4 vehicle had been “out of service” for at least thirty 5 days. Id. ¶¶ 22, 24. Plaintiff further alleged that 6 Defendant willfully failed to repair the problems or 7 promptly repurchase the vehicle. Id. ¶¶ 23, 25-26. 8 Shortly after Plaintiff filed her Complaint, 9 Defendant removed to this Court [1] and filed an Answer. 10 On June 14, 2022, Plaintiff’s counsel filed a Motion to 11 Withdraw as Attorney [17], stating that despite multiple 12 attempts to contact Plaintiff, they had not been in 13 contact with her since April 11, 2022, and could no 14 longer effectively represent her. In response, 15 Defendant filed a Notice of Non-Opposition [18] and on 16 July 14, 2022, the Court granted Counsel’s Motion [20]. 17 Defendant then filed the instant Motion on July 29, 18 2022, as well as a Request for Judicial Notice.3 19 Plaintiff has not opposed the Motion for Summary 20 Judgment nor objected to the Request for Judicial 21 Notice. On August 16, 2022, Defendant filed a Notice of 22 Non-Opposition to the Motion for Summary Judgment [24]. 23

24 3 Defendant requests that the Court take judicial notice of the courts’ orders dismissing the claims in Fish v. Tesla, Inc., 25 No. SACV-21-060-PSG-JDEX, 2022 WL 1552137 (C.D. Cal. May 12, 2022), and Neyra, et al. v. Mercedes-Benz USA, LLC, No. 22-CV- 26 00950-JFW-JEM (C.D. Cal. May 24, 2022), Order Granting Mot. to Dismiss, ECF No. 32. Since the Court does not rely on the 27 proffered orders to resolve the present Motion, the Court DENIES 28 Defendant’s Request for Judicial Notice as moot. 3 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 4 of 9 Page ID #:264

1

2 II. DISCUSSION

3 A. Legal Standard 4 Summary judgment is appropriate when the moving 5 party “shows that there is no genuine dispute as to any 6 material fact and the movant is entitled to judgment as 7 a matter of law.” Fed. R. Civ. P. 56(a). A fact is 8 “material” if it might affect the outcome of the suit, 9 and the dispute is “genuine” if the evidence is such 10 that a reasonable factfinder could return a verdict for 11 the nonmoving party. Anderson v. Liberty Lobby, 477 U.S 12 242, 248 (1986). 13 The moving party bears the initial burden of 14 proving the absence of a genuine dispute of material 15 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 16 (1986). Where the nonmoving party bears the burden of 17 proof at trial, the moving party need only show “an 18 absence of evidence to support the nonmoving party’s 19 case.” Id. at 325. If the moving party meets its 20 burden, the burden then shifts to the nonmoving party to 21 present “specific facts showing that there is a genuine 22 issue for trial.” Anderson, 477 U.S at 250. The 23 nonmoving party “must show more than the mere existence 24 of a scintilla of evidence . . . or some ‘metaphysical 25 doubt’ as to the material facts at issue.” In re Oracle 26 Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). 27 The evidence, and all reasonable inferences based 28 on underlying facts, must be construed in the light most 4 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 5 of 9 Page ID #:265

1 favorable to the nonmoving party. Scott v. Harris,

2 550 U.S. 372, 378 (2007). In reviewing the record, the

3 court’s function is not to weigh the evidence but only 4 to determine if a genuine issue of material fact exists. 5 Anderson, 477 U.S. at 255. “A district court’s ruling 6 on a motion for summary judgment may only be based on 7 admissible evidence.” In re Oracle Corp. Sec. Litig., 8 627 F.3d at 385. “While the evidence presented at the 9 summary judgment stage does not yet need to be in a form 10 that would be admissible at trial, the proponent must 11 set out facts that it will be able to prove through 12 admissible evidence.” Norse v. City of Santa Cruz, 13 629 F.3d 966, 973 (9th Cir. 2010). 14 B. Discussion 15 Plaintiff does not oppose the present motion. In 16 the absence of an opposition, the Court nevertheless 17 decides a motion for summary judgment on its merits. 18 See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 (9th Cir. 19 1994) (holding that an unopposed motion for summary 20 judgment may be granted only after the court determines 21 there are no material issues of fact). Defendant, 22 therefore, must still meet its burden of showing the 23 absence of a genuine issue of material fact. 24 Plaintiff alleges that Defendant breached an 25 express warranty in violation of the Song-Beverly 26 Consumer Warranty Act (“the Act”), Cal. Civ. Code § 1790 27 et seq., which “provides special consumer remedies to 28 purchasers of new cars covered by express warranties.” 5 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 6 of 9 Page ID #:266

1 Rodriguez v. FCA US, LLC, 292 Cal. Rptr. 3d 382, 384

2 (2022), review granted 512 P.3d 654 (Cal. 2022).

3 Plaintiff seeks remedies under section 1793.2(d)(2) of 4 the Act, also known as the “refund-or-replace” 5 provision. Compl. ¶¶ 21-25. This provision requires a 6 manufacturer to either replace a defective vehicle or 7 refund the consumer if, after a reasonable number of 8 attempts, the manufacturer or its representative cannot 9 repair the vehicle to conform with the applicable 10 express warranty. Cal. Civ. Code § 1793.2(d)(2). 11 Defendant counters that Plaintiff’s vehicle is not 12 protected by the Act because it does not qualify as a 13 “new motor vehicle,” and cites case law interpreting the 14 Act to exclude used vehicles from coverage, even if they 15 retained some balance of the original manufacturer’s 16 warranty at the time of sale. See generally Def.’s Mot. 17 for Summ. J. 18 The Act defines “new motor vehicle” as a new 19 vehicle bought primarily for personal purposes, 20 including “other motor vehicle[s] sold with a 21 manufacturer’s new car warranty.” Cal. Civ. Code 22 § 1793.22(e)(2). In Rodriguez, the California Court of 23 Appeals addressed whether the phrase “other motor 24 vehicle sold with a manufacturer’s new car warranty” 25 covers used vehicles sold with some balance remaining on 26 the manufacturer’s express warranty. Rodriguez, 27 292 Cal. Rptr. 3d at 384. The court concluded it does 28 not and that the phrase “functions instead as a catchall 6 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 7 of 9 Page ID #:267

1 for sales of essentially new vehicles where the

2 applicable warranty was issued with the sale.” Id.4 ;

3 see also Kiluk v. Mercedes-Benz USA, LLC, 256 Cal. Rptr. 4 3d 484, 487 (2019) (holding that the Act applies to a 5 used vehicle because the manufacturer issued a new 6 warranty upon sale); Jensen v. BMW of N. Am., Inc., 7 41 Cal. Rptr. 2d 295 (1995), as modified on denial of 8 reh’g (June 22, 1995) (finding that the Act applied to a 9 used demonstrator vehicle sold with a new warranty). 10 Thus, when a consumer purchases a used vehicle, they may 11 only invoke the Act’s protections if the manufacturer or 12 its agent furnished a new warranty at the time of the 13 sale. 14 Here, the weight of the evidence shows that 15 Plaintiff purchased a used vehicle. The Mercedes-Benz 16 sales file, some of which Plaintiff reviewed and signed, 17 refers to the vehicle as “preowned” and “used.” Def.’s 18 Mot. For Summ. J., Ex. A-Sales File, ECF No. 22-6, at 19 24, 26, 32. Similarly, the Department of Motor Vehicles 20 Report of Sale specifies that Plaintiff purchased a 21 “used vehicle.” Id. at 22-23. Therefore, despite any

22 4 The California Supreme Court is currently reviewing Rodriguez, however, the Court denied requests for an order 23 directing depublication of the opinion and commented that the 24 case may still be cited “for its persuasive value.” Rodriguez, 512 P.3d at 654. Several courts in this Circuit have since cited 25 Rodriguez to support their reasoning. See Pineda v. Nissan N. Am., Inc., No. cv 22-239-DMG (JCX), 2022 WL 2920416 (C.D. Cal. 26 July 25, 2022); Spindler v. Gen. Motors, LLC, No. 21-cv-09311- WHO, 2022 WL 2905232 at *5 n.3(N.D. Cal. July 21, 2022). This 27 Court finds Rodriguez instructive in interpreting the Act and 28 cites to Rodriguez only for its persuasive value. 7 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 8 of 9 Page ID #:268

1 preexisting warranty on the vehicle, Plaintiff’s vehicle

2 will only qualify as “new” under the Act if Defendant or

3 its agent issued an express warranty5 during the sale of 4 the vehicle. 5 There is no evidence, however, that Defendant or 6 any of its agents issued a new warranty when Plaintiff 7 purchased her vehicle. In fact, Mercedes-Benz of 8 Beverly Hills explicitly disclaimed all warranties in 9 the sales contract, stating that it “makes no 10 warranties, express or implied, on the vehicle.” Id. 11 at 5. And in the absence of a written express warranty 12 issued at the time of sale, Plaintiff’s vehicle does not 13 qualify as “new” under the Act. 14 In sum, it is undisputed that Plaintiff purchased a 15 pre-owned vehicle and that neither Defendant nor its 16 agents issued a new express warranty with the vehicle’s 17 sale. Plaintiff’s vehicle is therefore not protected by 18 the Act and her claim fails. Thus, there remains no 19 genuine issue of material fact to resolve, and the Court 20 GRANTS Defendant’s Motion for Summary Judgment. 21 22 23 5 Under the Act, an “express warranty” is “[a] written 24 statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer 25 undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure 26 in utility or performance.” Cal. Civ. Code § 1791.2(a)(1). 27 28 8 Case 2:21-cv-02671-RSWL-JC Document 28 Filed 10/05/22 Page 9 of 9 Page ID #:269

1 III. CONCLUSION 2 Based on the foregoing, the Court GRANTS Defendant’s 3 Motion for Summary Judgment. The Court enters 4 judgment in favor of Defendant and against Plaintiff on 5 Plaintiff’s claim for relief. 6 IT IS SO ORDERED. 7 8 DATED: October 5, 2022 _ _ _ _ _/_S_/_ _R_O_N_A__L_D_ _S_._W_._ _L_E_W_____

HONORABLE RONALD S.W. LEW

9 Senior U.S. District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9