Tabatha M. Lyon vs. Fca Us, LLC

Motion to Strike

Cal. Super. - 4th Dist.December 1, 2016

© 0 NN O N wn A W O N = N N N N N N N N N N N N N O N m m mm p m p d p d p d p d p d f d pe 0 uN O N Un BRA W N D = O O N N N N R A W N = Oo SCHLICHTER & SHONACK, LLP KURT ANDREW SCHLICHTER, Bar No. 172385 EDWIN ESSAKHAR, Bar No. 287792 ADAM C. ZAMOST, Bar No. 305655 2381 Rosecrans Avenue, Suite 326 El Segundo, CA 90245 Telephone: (310) 643-0111 Fax: (310) 643-1638 Attorneys for Defendant CARMAX AUTO SUPERSTORES WEST COAST, INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 12/23/2016 at 11:07:00 AM Clerk of the Superior Court By Lourdes hora, Deputy Clerk SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE — CENTRAL JUSTICE CENTER TABITHA M. LYON, Plaintiff, : ) ) V. ) ) ) FCA US, LLC; ) CARMAX AUTO SUPERSTORES WEST) COAST, INC.; AND DOES 1-20 ) Defendants. : ) ) Time: ) Department: Case No. 30-2016-00889760-CU-BC-CJC UNLIMITED CIVIL ACTION Complaint Filed: August 8, 2016 Assigned To: Hon. James L. Crandall DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT Reservation No. 72505019 Hearing Date: February 9, 2017 1:30 p.m. C33 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE THAT, at the hour of 1:30 p.m., on February 9, 2017, in Department C33 of the above-entitled court located at 700 Civic Center Drive West in Santa Ana, California 92701, defendant CarMax Auto Superstores West Coast, Inc. (“CarMax”) shall move to strike portions of plaintiff’s Complaint. i DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT © 0 39 Oo wn» BH L L N = N O N N N N NN NN ND N m o m e m p d p m h m e m e d p d e t 00 NN AA nn A W N = O DO N N N R W =, Oo The motion to strike shall be based upon this notice, the attached memorandum of points and authorities, the concurrently filed demurrer, which is incorporated herein, all documents and pleadings on file with the Court in this matter, and upon such oral and documentary evidence as may be presented at the hearing of this motion. This motion to strike shall incorporate the demurrer to be heard concurrently. Dated: December 23, 2016 Respectfully Submitted, SCHLICHTER & SHONACK, LLP ps By/ / KURTA. S ICHTER EDWIN ESSAKHAR ADAM C. LAMOST Attorneys for Deféndant CARMAX AUTO SUPERSTORES WEST COAST, INC. ii DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.”’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT © 0 NN O&A Wn bh W N N O N ND N D N N O N O N N m mm mm e m e m p m e m p d pe d 0 3 A N Un RA W N = O VV N N N R A W = O moves to strike plaintiff's Complaint as follows: n 1 1 1 Defendant CARMAX AUTO SUPERSTORES WEST COAST, INC. (“CarMax”) hereby MOTION TO STRIKE Complaint, First Cause of Action, § VII, page 4, lines 20 through 21, as to CarMax, as irrelevant and improper: “and a civil penalty which shall not exceed two times the amount of actual damages” Complaint, First Cause of Action, § VII, page 4, lines 21 through 22, as to CarMax, irrelevant and improper: “and reasonable attorney fees according to proof” Complaint, Second Cause of Action, § VII, page 7, lines 12 through 13, as to CarMax, as irrelevant and improper: “and reasonable attorney fees according to proof” Complaint, Prayer on First Cause of Action, Item No. 1, page 7, lines 17 through 18, as to CarMax, as irrelevant and improper: “For three times general damages according to proof as provided by California Civil Code beginning at 1794.” Complaint, Prayer on First Cause of Action, Item No. 3, page 7, lines 22 through 23, as to CarMax, as irrelevant and improper: “For reasonable attorney’s fees as provided by California Code Section 1794.” Complaint, Prayer on Second Cause of Action, Item No. 3, page 8, lines 8 through 9, as to CarMax, as irrelevant and improper: “For reasonable attorney’s fees as provided by California Code Section 1794.” iii DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT © 0 NN O N Wn bs WLW N = N O N N N N N NN NN O N mm e m e m p m e m p m e d p m e d p a 0 J ON Wn BRA W N = O O VL N N O R E W I N D = Oo Dated: December 23,2016 iv Respectfully Submitted, SCHLICHTER — SHONACK, LLP Jo fF Js SAKHAR ADAM €. ZAMOST Attorneys for Defendant CARMAX AUTO SUPERSTORES WEST COAST, INC. DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT O O 0 NN O&O wn A W N N O N ND N N N N N N N N mm e m mm e m em e m md md p d 0 NN A N Ln A W N = O VL N N N RAE W N R O MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION This is a lawsuit over the sale of a used car with claims against CarMax Auto Superstores West Coast, Inc. (“CarMax”), and manufacturer FCA US, LLC (“FCA”). Plaintiff Tabitha Lyon alleges two causes of action against CarMax for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act. CarMax now moves to strike various improper items alleged in the Complaint pursuant to Code of Civil Procedure (“CCP”)§§ 435 and 436, for failure to state facts sufficient to constitute a cause of action. CarMax also concurrently demurs to plaintiffs entire Complaint against CarMax in its separately filed and served demurrer. Plaintiff’s express warranty claim fails on the facts alleged in the Complaint. The only express warranty arising out of the purchase of the vehicle was CarMax’s 30-Day Limited Warranty. While plaintiff makes only bare, conclusory allegations that defendants “failed to conform the subject vehicle to the express warranty within a reasonable number of attempts or within 30 days” (Complaint, First Cause of Action, J V), the Complaint never specifically pleads that plaintiff presented the vehicle to CarMax on any occasion, let alone within 30 days of purchase. A consumer must provide a dealer with an opportunity to correct any nonconformities before the dealer is liable to the consumer, and only one opportunity to correct is insufficient as a matter of law. (Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208.) Moreover, the Complaint does not plead sufficient facts showing that any alleged defects in the subject vehicle constituted “nonconformities™ that substantially impaired the vehicle’s use, value or safety. (Civil Code § 1793.22(e)(1).) In fact, the Complaint does not specify what the defects were at all, and instead only concludes that the vehicle “was defectively manufactured, designed or assembled.” (Complaint, First Cause of Action, J IV) Thus, plaintiff’s express warranty claim fails. The implied warranty claim also fails because plaintiff again fails to plead the most basic facts necessary to the claim, i.e., that the alleged defects rendered the vehicle unusable for its intended purpose. Plaintiff again only makes sparse, conclusory allegations that the vehicle 1 DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT © 0 NN O N wn Bs W N N O N N N O N N N O N O N m m mm e m e m e m e m e d e e e m WW NN AA Un Bh W N = O OV N N N R L Y —-, CO “was defectively manufactured, designed or assembled,” and “was not merchantable and not fit for its ordinary, intended or particular purpose and would not pass without objection in the trade” (Complaint, Second Cause of Action, § IV), but she fails to plead how those issues affected the drivability of the vehicle and, moreover, fails to plead that the vehicle is not currently drivable. The allegations do not support a breach of implied warranty of merchantability claim. Plaintiff alleges she is entitled to “a civil penalty which shall not exceed two times the amount of actual damages” under her breach of express warranty cause of action. (Complaint, First Cause of Action, J VII) She also alleges she is entitled to “attorney fees according to proof” under both the breach of express warranty and breach of implied warranty causes of action. (/d., First Cause of Action, § VII, Second Cause of Action, § VII) The Court should sustain the concurrently filed demurrer in its entirety, but if it does not do so, it should strike the items set forth herein so that the parties litigate only potentially viable claims. 2. RELEVANT FACTS ALLEGED IN THE COMPLAINT The Complaint alleges that on or about August 28, 2016, plaintiff Tabitha Lyon purchased a 2012 Dodge Journey (“the vehicle) from the Costa Mesa, California, CarMax location. (Complaint, First Cause of Action, YI, II, Second Cause of Action, § II) The Complaint alleges that “FCA’s express warranties covering the subject vehicle remained intact and enforceable,” and that “the subject vehicle came with an additional express warranty from Defendant[] CARMAX,” as described in a written statement that “accompanied the subject vehicle.” (Complaint, First Cause of Action, J IL, III, Second Cause of Action, JY II, IIT) The Complaint alleges that, “[w]ithin the express warranty periods, Plaintiff discovered that the subject vehicle failed to conform to the manufacturer’s specifications, in that the subject vehicle was defectively manufactured, designed or assembled.” (Zd., First Cause of Action, IV) The Complaint goes on to allege that “[p]laintiff thereon attempted to act on Defendants’ express 2 DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT OO 0 NJ O N Wn S W ND = N O N N ND N N N N m m e s e e e e e e 0 NN O N Wn BDA W N R E D O VO N Y N R W NN = O warranties,” but concludes that the defendants “willfully violated the provisions of the [Song- Beverly Consumer Warrantry] Act” and “failed to conform the subject vehicle to the express warranty within a reasonable number of attempts or within 30 days.” (/d., First Cause of Action, Tv) The Complaint further alleges that “the vehicle came accompanied by the implied warranties of merchantability and fitness for a particular purpose” by defendants, and concludes that, “[w]ithin the implied warranty period, Plaintiff discovered that the subject vehicle failed to conform to the implied warranties of defendants . . . in that the subject vehicle was defectively manufactured, designed or assembled, and . . . was not merchantable and not fit for its ordinary, intended or particular purpose and would not pass without objection in the trade.” (Complaint, Second Cause of Action, IY III, IV) The Complaint also alleges that “[p]laintiff gave notification” of the breaches of express and implied warranties to the defendants, but the defendants “failed to replace the subject vehicle or return consideration paid.” (Complaint, First Cause of Action, J V, Second Cause of Action, § Vj 3 STANDARD OF REVIEW Pursuant to Code of Civil Procedure (“CCP”) § 435 (b)(1): “Any party, within the time allowed to respond to a pleading may serve and file a Notice of Motion to Strike the whole or any part thereof.” CCP § 436 (a) provides that irrelevant, false or improper matter may be stricken from the complaint. “Irrelevant” is defined by statute as any immaterial allegation in the complaint, including demands for damages or relief not supported by the allegations of the complaint; and any other allegation “not pertinent to or supported by an otherwise sufficient claim or defense.” CCP § 431.10 (b). 1 In 3 DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT © © 9 O&O Lh A W N N O N N D N N N D RN N N o m e m e m E E e e e e e e e e 0 NN O N Ln A W N R O VY N N R E W I N D e o 4. PLAINTIFF IS NOT ENTITLED TO ANY CIVIL PENALTY The First Cause of Action seeks a civil penalty under the Song-Beverly Consumer Warranty Act. This prayer should be stricken. (Motion to Strike, Item Nos. 1, 4). Section 1794(c) of the Song-Beverly Consumer Warranty Act provides: If the buyer establishes that the failure to comply was willful, the judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty which shall not exceed two times the amount of actual damages. This subdivision shall not apply in any class action under Section 382 of the Code of Civil Procedure or under Section 1781, or with respect to a claim based solely on a breach of an implied warranty. Plaintiff offers only the bare conclusion that “Defendants FCA, CARMAX and DOES 1- 20 willfully violated the provisions of the [Song-Beverly Consumer Warranty] Act and breached the express warranty made to Plaintiff” because each defendant “failed to conform the subject vehicle to the express warranty within a reasonable number of attempts.” (Complaint, First Cause of Action, § V) However, the Complaint fails to make the threshold showing that CarMax failed to satisfy its obligations under Song-Beverly, let alone that it did so willfully. As discussed in the concurrently-filed demurrer, the Complaint alleges no facts to show that the alleged defects constituted nonconformities or rendered the vehicle unusable, that plaintiff brought the vehicle to CarMax for repairs during any applicable warranty period, or that CarMax failed to remedy any complaints plaintiff had regarding the vehicle. Plaintiff makes no effort to distinguish between CarMax and the other defendants, and fails to plead any facts whatsoever to show how CarMax failed to comply, let alone specific facts as to any willful acts by CarMax. As such, plaintiff has failed to plead an entitlement to a civil penalty. When testing the sufficiency of a complaint on demurrer, the Court must disregard all “contentions, deductions or conclusions of fact or law alleged therein.” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. Accordingly, the conclusory references to civil penalties are irrelevant and improper and should be stricken from the complaint. (Motion to Strike, Item Nos. 1, 4) 4 DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT Oo [= ] al aN Wn EY Ww NN —_ N N N N N N N N N = e e e m em e e e m e m 0 NN A A Un BA W N E O VW N N N EE W N = Oo 5. PLAINTIFF'S CLAIM FOR ATTORNEY'S FEES SHOULD BE STRICKEN Plaintiff expressly seeks attorneys’ fees under both causes of action. “California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees.” Trope v. Katz (1995) 11 Cal.4th 274, 278. This rule has been codified in Code of Civil Procedure § 1021, which states that “the measure and mode of compensation of attorneys and counselors at law is left to the agreement” except as “specifically provided by statute.” To the extent that the demurrer to plaintiff’s first or second causes of action is sustained, however, attorneys’ fees will be unavailable. (Motion to Strike Item Nos. 2, 3, 5, 6) Civil Code § 1794(d) requires that a buyer prevail on a Song-Beverly claim, stating: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees...” (emphasis added). Similarly, Civil Code § 1780(e) limits attorney fee awards to “prevailing plaintiff]s].” As discussed above and in the concurrently-filed demurrer, the Complaint fails to set forth any substantive factual allegations giving rise to an express or implied warranty claim under Song-Beverly. Accordingly, all requests for attorney’s fees and costs from CarMax should be stricken. (Motion to Strike Item No. 2, 3, 5, 6) 6. CONCLUSION For the reasons set forth above, the Court should grant this motion to strike in its entirety without leave to amend. in In in nn In nn nn 5 DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT O O 0 9 OA Wn h h W N = N O N N N N N N N N m mm e m e m E p e m e a 0 NN O N nm BRA W N R O V V N N N B R E W ND OO Dated: December 23, 2016 6 Respectfully Submitted, SCHLICHTER & SHONACK, LLP Byr”/ KURT Al. SCHLICHTER EDWIN ESSAKHAR ADAM C. ZAMOST Attorneys for Defendants CARMAX AUTO SUPERSTORES WEST COAST, INC. DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT OW 0 J Oo wn HAH WwW N N = N N N N N N N N N O N m m md m t m d p d p m b m e m 0 NN AA Wn Bh W N = O VO N Y R W = O PROOF OF SERVICE State of California ) ) SS. County of Los Angeles ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2381 Rosecrans Ave., Ste. 2700, El Segundo, CA 90245. On the date below, I served the foregoing document described as DEFENDANT CARMAX AUTO SUPERSTORES WEST COAST, INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF TABITHA LYON’S COMPLAINT on all interested parties in this action as follows: Timothy F. Fatone, Esq. Attorney for plaintiff Law Offices of Timothy F. Fatone Tabitha M. Lyon 333 City Blvd. West, Floor 17 Orange, CA 92868 (562) 286-6525 Fax No.: (562) 286-6526 lemonlawattorney@aol.com Jim O. Whitworth, Esq. Co-Counsel for plaintiff Law Offices of Jim O. Whitworth Tabitha M. Lyon 7071 Warner Ave., Ste. F-134 Huntington Beach, CA 92647 (714) 841-0585 Fax No. (714) 845-9950 Jim@lemoncarhelp.com I served the foregoing document by U.S. Mail, as follows: I placed true copies of the document in a sealed envelope addressed to each interested party as shown above. I placed each such envelope, with postage thereon fully prepaid, for collection and mailing at El Segundo, California. I am readily familiar with the firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, the correspondence would be deposited in the United States Postal Service on that same day in the ordinary course of business. n I mn © 0 0 3 O N Wn HA WwW N = N O N O R N O N N N RN N N ke Ee em ks ea ea em ea © NI AA nM RAR W N = O Vv 00 N N N n h W N = OO I declare under penalty of perjury under the laws of the State of California and the United States of America that the above is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on December 23, 2016 at El Segundo, California. as PHANIE ati