1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHEYENNE LEMKE-VEGA, Case No. 23-cv-01408-DMR

8 Plaintiff,

ORDER ON MOTION TO DISMISS

9 v. AND/OR STRIKE

10 MERCEDES-BENZ USA, LLC, Re: Dkt. No. 14 11 Defendant.

12 This is a lemon law case involving an allegedly defective 2019 Mercedes-Benz that 13 Plaintiff Cheyenne Lemke-Vega purchased in July 2022. Lemke-Vega claims violations of state 14 law against Defendant Mercedes-Benz USA, LLC (“MBUSA”). MBUSA now moves pursuant to 15 Federal Rules of Civil Procedure 12(b)(6) and 12(f) to dismiss and/or strike portions of the 16 complaint. [Docket No. 14.] This matter is suitable for determination without oral argument. 17 Civ. L.R. 7-1(b). For the following reasons, the motion to dismiss is granted. The motion to 18 strike is denied as moot. 19 I. BACKGROUND 20 The complaint contains the following allegations.1 On July 18, 2022, Lemke-Vega 21 purchased a used 2019 Mercedes-Benz A220 (“the vehicle”) from Mercedes-Benz of Walnut 22 Creek, an MBUSA-authorized dealership and repair facility. Compl. ¶¶ 8, 17. The total sale price 23 was $62,427.04. Id. at ¶ 3, Ex. A. Lemke-Vega alleges that “[e]xpress warranties accompanied 24 the sale of the Subject Vehicle . . . by which [MBUSA] undertook to preserve or maintain the 25 utility or performance” of the vehicle or to provide compensation in the event of “failure in such 26

27 1 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 1 utility or performance.” Compl. ¶ 17. She alleges that the vehicle had “serious defects and 2 nonconformities to warranty and developed other serious defects and nonconformities to 3 warranty,” including defects in the powertrain, engine, transmission, steering, and HVAC systems. 4 Id. at ¶ 18. Exhibit A to the complaint is the Retail Installment Sale Contract (“RISC”) for the 5 vehicle. Id. at ¶ 3, Ex. A. 6 Lemke-Vega filed the complaint on March 24, 2023 alleging three claims under the Song- 7 Beverly Consumer Warranty Act, California Civil Code sections 1790 et seq. (“Song-Beverly 8 Act”): 1) breach of express warranty under section 1793.2(d)(2); 2) breach of implied warranty 9 under section 1792; and 3) violation of California Civil Code section 1793.2(b). MBUSA now 10 moves to dismiss the complaint and/or strike portions thereof.2 11 II. LEGAL STANDARDS 12 A. Rule 12(b)(6) 13 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 14 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 15 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 16 of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94, and may dismiss a 17 claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual 18 matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 19 622 F.3d 1035, 1041 (9th Cir. 2010) (quotation marks omitted) (quoting Navarro v. Block, 250 20 F.3d 729, 732 (9th Cir. 2001)) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)). A claim 21 has facial plausibility when a plaintiff “pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 23 678 (citation omitted). In other words, the facts alleged must demonstrate “more than labels and 24 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. 25 Corp. v. Twombly, 550 U.S. 554, 555 (2007). 26 2 MBUSA asks the court to take judicial notice of five documents. Each is an opinion granting 27 motions to dismiss or for summary judgment, and all are available on Westlaw. [Docket No. 15.] 1 Taken together, Iqbal and Twombly require well-pleaded facts, not legal conclusions, that 2 “plausibly give rise to an entitlement to relief. Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 3 1176 (9th Cir. 2021) (quotations and internal citations omitted). 4 B. Rule 12(f) 5 Federal Rule of Civil Procedure 12(f) provides that a court “may strike from a pleading an 6 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A matter is 7 “immaterial” when it “has no essential or important relationship to the claim for relief or the 8 defenses being pleaded, while ‘[i]mpertinent’ matter consists of statements that do not pertain, and 9 are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th 10 Cir. 1993), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). The function 11 of a Rule 12(f) motion to strike is to avoid the expenditure of time and money that arises from 12 litigating spurious issues by dispensing of those issues before trial, and such a motion may be 13 appropriate where it will streamline the ultimate resolution of the action. Fantasy, 984 F.2d at 14 1527-28. “A motion to strike should be granted if it will eliminate serious risks of prejudice to the 15 moving party, delay, or confusion of issues.” Lee v. Hertz Corp., 330 F.R.D. 557, 560 (N.D. Cal. 16 2019) (citing Fantasy, 984 F.2d at 1528). “Motions to strike are regarded with disfavor [ ] 17 because of the limited importance of pleadings in federal practice and because they are often used 18 solely to delay proceedings.” Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F. Supp. 3d 850, 858 19 (N.D. Cal. 2014) (quotation omitted). “The grounds for a motion to strike must appear on the face 20 of the pleading under attack,” and “the Court must view the pleading under attack in the light more 21 favorable to the pleader when ruling upon a motion to strike.” Amini Innovation Corp. v. 22 McFerran Home Furnishings, Inc., 301 F.R.D. 487, 489 (C.D. Cal. 2014) (citations omitted). 23 III. DISCUSSION3 24 A. Motion to Dismiss 25 1. Breach of Express Warranty 26 California’s Song-Beverly Act “is a remedial statute designed to protect consumers who 27 1 have purchased products covered by an express warranty.” Robertson v. Fleetwood Travel 2 Trailers of Cal., Inc., 144 Cal. App. 4th 785, 798 (2006). The law “regulates warranty terms, 3 imposes service and repair obligations on manufacturers, distributors, and retailers who make 4 express warranties, requires disclosure of specified information in express warranties, and 5 broadens a buyer’s remedies to include costs, attorney’s fees, and civil penalties.” Dominguez v. 6 Am. Suzuki Motor Corp., 160 Cal. App. 4th 53, 57-58 (2008) (quoting Murillo v. Fleetwood 7 Enters., 17 Cal. 4th 985, 989-90 (1998)). A buyer “who is damaged by a failure to comply with 8 any obligation under [the Song-Beverly Act] . . . may bring an action for the recovery of damages 9 and other legal and equitable relief.” Cal. Civ. Code § 1794(a). 10 Lemke-Vega seeks relief under the “refund or replace” provision of the Song-Beverly Act, 11 California Civil Code section 1793.2(d)(2). Compl. 6 ¶¶ 25, 26. That provision states that “[i]f 12 the manufacturer or its representative in this state is unable to service or repair a new motor 13 vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform 14 to the applicable express warranties after a reasonable number of attempts, the manufacturer shall 15 either promptly replace the new motor vehicle . . . or promptly make restitution to the buyer” in 16 accordance with the statute. Cal. Civ. Code § 1793.2(d)(2). The statute defines “new motor 17 vehicle” as “a new motor vehicle that is bought or used primarily for personal, family, or household purposes,” and includes “a dealer-owned vehicle and a ‘demonstrator’ or other motor 18 vehicle sold with a manufacturer’s new car warranty.” Cal. Civ. Code § 1793.22(e)(2). “A 19 demonstrator is a vehicle assigned by a dealer for the purpose of demonstrating qualities and 20 characteristics common to vehicles of the same or similar model and type.” Id. 21 MBUSA moves to dismiss the breach of express warranty claim because the complaint 22 alleges that Lemke-Vega purchased a “used” car. MBUSA argues that used cars do not fall under 23 section 1793.22’s definition of “new motor vehicle” pursuant to Rodriguez v. FCA US, LLC, 77 24 Cal. App. 5th 209, 225 (2022). Mot. 1; see Compl. ¶ 17 (“Plaintiff purchased a used 2019 25 Mercedes-Benz A220”). Lemke-Vega responds that a used car “sold with a transferrable new 26 27 1 vehicle warranty is a ‘new vehicle’ for purposes of the Act,” relying on Jensen v. BMW of North 2 America, Inc., 35 Cal. App. 4th 112, 123 (1995). She urges the court to decline to follow 3 Rodriguez. Opp’n 5, 7. 4 In Jensen, the plaintiff leased a car from a dealership that the salesperson described as a 5 “demonstrator.” 35 Cal. App. 4th at 119. The salesperson offered her a “36,000-mile warranty on 6 top of the [7,565] miles already on the car and gave her the warranty booklet” and “[t]he dealer 7 wrote ‘factory demo’ on the credit application.” In fact, the car had been previously owned. The 8 manufacturer argued that the car was not a “new motor vehicle” under section 1793.22. Id. at 120, 122. The court considered the phrase “a dealer-owned vehicle and a ‘demonstrator’ or other motor 9 vehicle sold with a manufacturer’s new car warranty” and concluded that “cars sold with a balance 10 remaining on the manufacturer’s new motor vehicle warranty are included within [section 11 1793.22’s] definition of ‘new motor vehicle.’” Id. at 122-23. It affirmed a jury’s verdict for the 12 plaintiff for breach of the manufacturer’s express written warranty. Id. at 119, 128, 138. 13 Courts have questioned Jensen’s seemingly broad holding about whether a used car can be 14 a “new motor vehicle” under the Song-Beverly Act and have limited its holding to its facts. See, 15 e.g., Kiluk v. Mercedes-Benz USA, LLC, 43 Cal. App. 5th 334, 340, n.4 (2019) (noting 16 “reservations” about Jensen’s holding; observing that language “or other motor vehicle sold with a 17 manufacturer’s new car warranty” from section 1793.22 “arguably . . . refers to cars originally 18 sold with a new motor vehicle warranty, not subsequent sales”); Dagher v. Ford Motor Co., 238 19 Cal. App. 4th 905, 923 (2015) (limiting the application of Jensen to its facts). Recently, 20 Rodriguez examined the statutory framework and history of the motor vehicle refund-or-replace 21 provision in section 1793.2(d)(2) and definition of “new motor vehicle” in section 1793.22(e)(2).4 22 77 Cal. App. 5th at 217-23. The court disagreed with Jensen’s construction of the definition, 23 holding that the phrase “‘other motor vehicle sold with a manufacturer’s new car warranty’ refers 24 25 4 The California Supreme Court granted review of Rodriguez in July 2022. 295 Cal. Rptr. 3d 351 26 (2022). It declined to depublish the opinion and held that the Court of Appeal’s opinion could be cited “not only for its persuasive value, but also for the limited purpose of establishing the 27 existence of a conflict in authority that would in turn allow trial courts to exercise discretion . . . to 1 to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the 2 original warranty.” Id. at 225. It reasoned that “demonstrators and dealer-owned vehicles 3 comprise a narrow category of basically new vehicles—they have never been previously sold to a 4 consumer and they come with full express warranties.” Id. at 220. Therefore, Rodriguez 5 concluded, “the most natural interpretation of the phrase ‘other motor vehicle sold with a 6 manufacturer’s new car warranty’ is that it, too, refers to vehicles that have never been previously 7 sold to a consumer and come with full express warranties.” Id. “[T]he phrase functions . . . as a 8 catchall for sales of essentially new vehicles where the applicable warranty was issued with the sale.” Id. at 215 (emphasis in original). Rodriguez also distinguished Jensen on its facts, noting 9 that “Jensen involved a lease by a manufacturer-affiliated dealer who issued a full new car 10 warranty along with the lease.” Id. at 223 (emphasis in original). “[T]he court [in Jensen] was 11 not asked to decide whether a used car with an unexpired warranty sold by a third party reseller 12 qualifies as a ‘new motor vehicle.’” Id. at 224. 13 This court finds the reasoning in Rodriguez persuasive and adopts it here. Under 14 Rodriguez, a plaintiff must allege that they purchased a vehicle which was “not previously sold to 15 a consumer” and was sold with “full express warranties” in order to plead the purchase of a “new 16 motor vehicle.” Id. at 220. Here, the complaint alleges that Lemke-Vega purchased a used 17 vehicle and that “[e]xpress warranties accompanied the sale.” Compl. ¶ 17. It does not allege that 18 the vehicle was not previously sold to a consumer. Additionally, the complaint does not include 19 any factual allegations about the terms of the “express warranties”; Lemke-Vega suggests in her 20 opposition that they include an “MBUSA Service Contract or Extended Warranty” contained in 21 the RISC. See Opp’n 7 (citing RISC 2, § I(2)). The relevant portion of the RISC appears in a 22 section entitled, “Optional Service Contract” with “Company MB PPM.” RISC 2. The RISC 23 does not identify MBUSA and the complaint does not allege that MBUSA issued the service 24 contract, as opposed to “MB PPM,” the entity listed on the RISC. Moreover, Lemke-Vega does 25 not cite any authority or offer any argument that a service contract is a “full express warranty” for 26 purposes of the relevant provisions of the Song-Beverly Act.5 Accordingly, the court concludes 27 1 that the complaint does not adequately allege that Lemke-Vega purchased a “new motor vehicle” 2 under section 1793.22.6 MBUSA’s motion to dismiss the first claim for breach of express 3 warranty is granted with leave to amend. 4 2. Breach of Implied Warranty 5 The second claim for relief is for breach of implied warranty. MBUSA moves to dismiss 6 this claim on the ground that as the vehicle’s manufacturer, it is not liable for breach of implied 7 warranty. Mot. 9-10. Lemke-Vega responds that MBUSA is liable because it “stepped into the 8 role of the retailer.” Opp’n 11. 9 The Song-Beverly Act provides that “every sale of consumer goods that are sold at retail in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that 10 the goods are merchantable.” Cal. Civ. Code § 1792. “‘Consumer goods’ means any new product 11 or part thereof that is used, bought, or leased for use primarily for personal, family, or household 12 purposes.” Cal. Civ. Code § 1791(a). Section 1795.5 extends the Song-Beverly Act to “used 13 consumer goods.” It provides that “[i]t shall be the obligation of the distributor or retail seller 14 making express warranties with respect to used consumer goods (and not the original 15 manufacturer, distributor, or retail seller making express warranties with respect to such goods 16 when new) to maintain sufficient service and repair facilities within this state to carry out the 17 terms of such express warranties.” Cal. Civ. Code § 1795.5(a). It further states that “[t]he 18 duration of the implied warranty of merchantability and where present the implied warranty of 19 fitness with respect to used consumer goods sold in this state, where the sale is accompanied by an 20 express warranty, shall be coextensive in duration with an express warranty which accompanies 21 the consumer goods, provided the duration of the express warranty is reasonable . . . ” Cal. Civ. 22 Code § 1795.5(c). 23 24 sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or 25 retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance.” Cal. Civ. Code § 26 1791.2(a)(1).

27 6 The facts of this case are also distinguishable from Jensen because the complaint does not allege 1 “[O]nly distributors or sellers of used goods—not manufacturers of new goods—have 2 implied warranty obligations in the sale of used goods.” Nunez v. FCA US LLC, 61 Cal. App. 5th 3 385, 399 (2021). See also Johnson v. Nissan N. Am., Inc., 272 F. Supp. 3d 1168, 1179 (N.D. Cal. 4 2017) (noting “[t]he plain language of the section clearly only creates obligations on behalf of ‘the 5 distributor or retail seller making express warranties with respect to used consumer goods (and not 6 the original manufacturer . . . )” and dismissing implied warranty claim on the ground that “the 7 Song-Beverly Act does not create any obligation on behalf of Nissan, the original car 8 manufacturer, with respect to used goods” (emphasis in original) (quotation omitted)). Nonetheless, one court has explained that “the assumption baked into section 1795.5 is that the 9 manufacturer and the distributor/retailer are distinct entities. Where the manufacturer sells 10 directly to the public, however, it takes on the role of a retailer.” Nunez, 61 Cal. App. 5th at 399 11 (quoting Kiluk v. Mercedes-Benz USA, LLC, 43 Cal. App. 5th 334, 339 (2019)). In Kiluk, the 12 manufacturer “partnered with a dealership to sell used vehicles directly to the public by offering 13 an express warranty as part of the sales package,” which the court described as “a crucial incentive 14 for buyers.” 43 Cal. App. 5th at 340. The court held that “[b]y partnering with the dealership, 15 Mercedes Benz stepped into the role of a retailer and was subject to the obligations of a retailer 16 under section 1795.5.” Id. 17 Here, the complaint does not allege facts to support a reasonable inference that MBUSA 18 “stepped into the role of a retailer.” Lemke-Vega alleges only that she purchased the subject 19 vehicle and that express warranties by MBUSA accompanied the sale. Compl. ¶ 17. But the 20 RISC is between Lemke-Vega and Mercedes Benz of Walnut Creek, not MBUSA, and the 21 complaint alleges no facts about the terms of the express warranties that would support a finding 22 that MBUSA was acting as a retailer in connection with the sale of the subject vehicle. See Nunez, 23 61 Cal. App. 5th at 399 (“plaintiff presented no evidence that defendant was ‘a distributor or retail 24 seller of used consumer goods’ (§ 1795.5), or in any way acted as such,” distinguishing Kiluk). 25 Accordingly, MBUSA’s motion to dismiss the breach of implied warranty claim is granted with 26 leave to amend. 27 3. Violation of Section 1793.2(b) 1 Lemke-Vega’s third claim for relief is for violation of California Civil Code section 2 1793.2(b). That statute provides that manufacturers of consumer goods sold in California and for 3 which the manufacturer has made an express warranty shall “service[ ] or repair[ ]” the consumer 4 goods “so as to conform to the applicable warranties within 30 days.” Cal. Civ. Code § 1793.2(b). 5 MBUSA moves to dismiss this claim on the ground that the complaint “fails to allege that any 6 individual repair attempt was not completed within thirty days or the date or visit on which this 7 alleged violation occurred.” Mot. 12. It also argues that the allegations supporting this claim are 8 vague and conclusory. Id. 9 The Ninth Circuit has held that section 1793.2(b)’s 30-day requirement applies per repair 10 facility visit. Schick v. BMW of N. Am., LLC, 801 F. App’x 519, 521 (9th Cir. 2020) (“under any 11 reasonable reading of the statute, § 1793.2(b) requires only that BMW complete any single repair 12 attempt within 30 days” (emphasis in original)). Therefore, in order to state a claim under that 13 section, “a plaintiff must plead that a single repair attempt took the defendant more than 30 days to 14 complete.” Herrera v. Ford Motor Co., No. 20-CV-00395-LHK, 2020 WL 3451328, at *4-5 15 (N.D. Cal. June 24, 2020) (citing Schick; Ortega v. BMW of N. Am., LLC, No. 2:18-CV-06637-R- 16 SK, 2019 WL 9044692, at *4 (C.D. Cal. Oct. 16, 2019); and Houston v. Country Coach, Inc., No. 17 C 07-00859 HRL, 2008 WL 2783485, at *9 (N.D. Cal. July 17, 2008)). 18 Here, the complaint alleges only that Lemke-Vega “delivered the Subject Vehicle to 19 [MBUSA’s] authorized service representatives on multiple occasions” and that MBUSA’s 20 “authorized facilities did not conform the Subject Vehicle to warranty within 30-days and/or 21 commence repairs within a reasonable time . . .” Compl. ¶¶ 48, 49. The complaint does not allege 22 “that any individual repair attempt was not completed within 30 days.” See Herrera, 2020 WL 23 3451328, at *4-5 (dismissing section 1793.2(b) claim for failure to allege that any single repair 24 attempt was not completed within 30 days). Accordingly, the complaint fails to state a claim for 25 violation of section 1793.2(b). This claim is dismissed with leave to amend. 26 B. Motion to Strike 27 MBUSA moves to strike the complaint’s references to restitution, replacement, or civil 1 penalties under Civil Code section 1794 in connection with Lemke-Vega’s claim for violation of 2 section 1793.2(b), arguing that she is not entitled to such remedies for a violation of that statute. 3 Mot. 12-13 (requesting the court strike Compl. J] 52-56). The motion to strike is denied as moot, 4 as the court has concluded that the complaint fails to state a claim for violation of section 5 1793.2(b). 6 || IV. CONCLUSION 7 For the foregoing reasons, MBUSA’s motion to dismiss is granted. The motion to strike is 8 denied as moot. Lemke-Vega may file an amended complaint by no later than June 12, 2023. The 9 initial case management conference is continued to July 19, 2023 at 1:30 pm. A joint CMC 10 statement is due by July 12, 2023. 5 DISTR Ic>

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