Opposition_to_plaintiffs_motion_for_preliminary_injunctionMotionCal. Super. - 2nd Dist.August 21, 2018Electronically FILED by S N E L L & W I L M E R CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 uperior Court of California, County of Los Angeles on 07/15/2020 04:21 PM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Miro,Deputy Clerk Warren E. Platt (#154086) wplatt@swlaw.com Katharine H. Adams (#291445) kadams@swlaw.com SNELL & WILMER L.L.P. 600 Anton Blvd., Suite 1400 Costa Mesa, California 92626-7689 Telephone: ~~ 714.427.7000 Facsimile: 714.427.7799 Attorneys for Defendant FORD MOTOR COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES LIZET LUEVANO, Plaintiff, VS. FORD MOTOR COMPANY, a Delaware Corporation; and DOES 1 through 10, inclusive, Defendant. Case No.: BC718660 Judge: Hon. Jon R. Takasugi Dept: 17 DEFENDANT FORD MOTOR COMPANY'S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION [Filed Concurrently With Ford's Request for Judicial Notice] Complaint Filed: August 21, 2018 Trial Date: None DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION S N E L L & W I L M E R CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 II. III. IV. TABLE OF CONTENTS Page IN TRCN NIN cesses samosas oss SE HE SB RRS 1 PLAINTIFF IS UNABLE TO PREVAIL ON HER SUBSTANTIVE CLAIMS. .............. 1 A. Plaintiff's CLRA Allegations Are Legally And Factually Without Merit............... 1 1. The CLRA Does Not Apply Here And Plaintiff’s Arguments Have Been Soundly Rejected By The Coutts. «uss swears 2 2. Ford’s Letter Complies With The Song-Beverly Act. .......ccccevieeieiniinnnenns 3 Plaintiff Fails And Is Unable To Identify Any Specific Conduct That Vislates. The CLRA. comes me sss 4 B. Plaintiff’s UCL Claim is Similarly Without Merit. ..........ccccccovinnieniiiiecniinneenen. 6 I. Plaintiff Has Failed To Allege That She Lost Any Money Or PIOPEITY. eee cteects see eres seers 6 2. Plaintiff Has Not Established That There Is No Adequate Remedy At Law Available: TO HET: sux zeus ssnuss ss ssnsss swssan ss susan svuasss ss sansa sss sa aus 6 PLAINTIFF IS NOT ENTITLED TO ANY INJUNCTIVE RELIEF..........cccccccvniinnnnnn. 7 A. Plaintiff Lacks Standing To Bring The Instant Motion. ........ccccccecevvieniceiecneennnen. 8 B. Plaintiff’s Motion Presupposes The Song-Beverly Act Applies When Offer Letters Are EXtended. ........ccovveiiiiiiiiiiinieiiececeeeee cece e ee 8 C. Plaintiff Cannot Establish Any Continued Wrongdoing Such That A Preliminary Injunction Would Be Proper. ..........ccoccvviiniiiiiniinnienicciccececeen 9 D. Plaintiff Cannot Identify Irreparable Harm In The Absence of An INJUNCHION. entities eee sree cre t ee sae seein enna 9 E. Plaintiff’s Motion Envisions An Absurd Scenario With The Courts Regularly Supervising Ford’s Out-Of-Court Settlement Endeavors. .................... 10 CONCLUSION mass scsi ssswssss swwssan su sass sss 55.08 2055515. 55 2655555 5755555. 03 24555450 S255 545 555558 0555.48 FURR 11 i DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION LL P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 C O S T A M E S A , C A L I F O R N I A 9 2 6 2 6 - 7 6 8 9 S N E L L & W I L M E R ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 20 28 TABLE OF AUTHORITIES Page(s) CASES Bush v. California Conservation Corps, (1982) 136 Cal.APP.3d 194... eee ete ee ete eases sate sabe ese e ens 7 Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., (1999) 20 Cal.dth 163 ....cniieiiieieeeeeee eee eee eee este e st teeabe estes tee sbae sabe ense eases este sabes esse anne 7 De Leon v. Ford Motor Co., (C.D. Cal. Nov. 13, 2019) 2019 WL 7195325... eters eee sree saree sane sarees 3,4 Diaz v. Kay-Dix Ranch, (1970) 9 CalLAPP.3A 588... eee eee stae sabe e teeta este este anne es sae sate ees 10 Durkee v. Ford Motor Co., (N.D. Cal. Sept. 2, 2014) 2014 WL 4352184 ...oooiieeieeeeeteeeite ects ee sae sevens 3,7 Gonzalez v. Ford Motor Co., (C.D. Cal. Mar. 22, 2019) 2019 WL 1364976 .......cooouieiieeieeeeeeeeseee eects eee 3,9,10 Gonzalez v. Ford Motor Co., (C.D. Cal. Oct. 23,2019) 2019 WL 6122554 .......uoiioeeeeeee eet eee eee ete e rst v s 3,4 In re Sony Gaming Networks & Customer Data Sec. Breach Litig., (S.D. Cal. 2012) 903 F. SUPP. 2d 942.....eneieieeee eee eerste seers sate eevee eee 2,9 Korea Supply Co. v. Lockheed Martin Corp., (2003) 29 Cal.th 1134 ..o.ceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeteee erases tae e erase ba eas ae sses enssa snssaesnneaee sseens 6 Madrigal v. Hint, Inc. (C.D. Cal. Deo. 14, 2017) WL BOBOS BA, cums mvs sms soos sss sso aise dss sess Soion ns 10 Mortv. U.S., (9th Cir. 1996) 86 F.3d 890.........cccuviieiiieeieeeeieeeetie eesti eevee sette tae eras erases a eaas ae eare ee sennes 10 Moss v. Infinity Ins. Co., (ND: Cal. 2016) 197 BE SOUBE:30. LTD si5.5050mms0 cnmnsn in sss sosssn.oo55ms5 55555055 0555550 555555.56 555555 E5555 5045555 7 Munning v. The Gap, Inc., (N.D. Cal. 2017) 238 F.SUPP.3d 1195 connecter eae eee 7 Philips v. Ford Motor Co., (ND: Cal. July 7s 2015) 2018 WL B11 VAR x ss ssmumsn cussions swoon ssvasmoiss sam 055555758 5455555 55555 05555558 4585 7 Robbins v. Hyundai Motor Am., (C.D. Cal. Aug. 7,2014) 2014 WL 4723505 .....coiie etait eters eee eee seee sate eebe ees 3 Schwartz v. Provident Life & Accident Ins. Co., (2013) 216 Cal ADAH GOT ons sumsssns swmssn ssn oo ssmsnss cxmssn on 555550 555555.5 5055555 S505555 15 5555558 SH505.5 5555558 555 6 Shersher v. Sup. Ct., (2007) 154 Cal.APP-Ath TAO] eee eee eee eee eee sbeebs eee 6 ii DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION LL P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 C O S T A M E S A , C A L I F O R N I A 9 2 6 2 6 - 7 6 8 9 S N E L L & W I L M E R ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 20 28 (continued) Page(s) Wolfe v. State Farm Fire & Casualty Ins. Co., C1996) AB CAL AD ATI, SDA. cixsn.is mms. ovsn so sumwse cwws55e 5555550 4555555.58 555555 E5555 9518 5555557 SVRF35.50 3555558 SRHHTH8 10 STATUTES Bus. & Prof. Code § 17200 ....... eee eee een ene en en en em en nen em en nnn em nnnens Bus. & Prof. Code § 17204 .......ooii ieee eects ees cece sree seer enna sean Civ. Code § T17002)(14) weenie eects eerste eset sree sabe ceases sree ea 2,4 Civ. Code § T1700)(19) eerie eee eee ete sate sees ebtesa testes eee sane 2,4 CAV TGUE § LT sms sms sess. oss 2553045 5555550050555. 00. 535555 S055 35059 S53 550 HS BS E555. 08 SRG SAAR 1,2 CLV. COE § 1TO01() cunrurrrriieieeeeeeiieieee eee eee e eee seer reese eset stare ease sees staabeae ease ee eansararaeaeseeeens CLV. COE § 1770 eee eee eee eee eee etree eee teeta ees esse sete aaa esas esse sessaa esse sesessannneneseenes Cv COAG § LT BUDA 5m mms sessnsn.s osm msn 255550505055 55.00. 5355550 S555 35059 S553 550 45555558 BS E5555 95.08 SHB S52 2,8 CLV. COE § TT eee eects sae sabes tee sate sabe eee e eee sane sabe eae ennee sree eas Civ. Code § 1793. 2(A)(1) weereeeiieeiie eee eects teste eee e sb eesabe sabe e eee st ee eabe esse ene eeseesbae ens Civ. Code § 1793.2) (NC) cess sswmmmmunosasenumsmmnsmn os camnss mosmmevnmasss ss os asso: a aE es mam wes iii TABLE OF AUTHORITIES DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION S N E L L & W I L M E R CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 I. INTRODUCTION Plaintiff Lizet Luevano bought a 2015 Ford Mustang on August 28, 2015. Plaintiff brought the instant action on August 21, 2018 against Ford alleging three causes of action for violation of Song-Beverly Act and two causes of action for Violation of Business and Professions Code section 17200 (Unfair Competition Law or “UCL”) and Violation of the Consumer Legal Remedies Act, Section 1750, et. seq. (“CLRA”). The claims here are premised entirely on allegations that Plaintiff demanded a buyback from Ford to resolve problems she experienced with the subject Mustang. In response to Plaintiff’s demand, Ford offered to purchase the Mustang as a “conditional settlement offer.” SAC, 49. Plaintiff did not accept this offer. Plaintiff’s Motion for Preliminary Injunction fails to satisfy any of the necessary requirements for this Court to grant it as she has not and cannot offer any evidence to establish irreparable harm and has failed to demonstrate that she is likely to prevail on the merits of her CLRA and UCL claims. The only evidence of irreparable harm are self-serving declarations, a recitation of facts alleged in her Complaint, and references to articles written over 30 years ago. Plaintiff is unable to meet her burden here as she is unable to prevail on her substantive claims.! Moreover, Plaintiff is not entitled to the requested injunctive relief as she lacks standing, she cannot establish any wrongdoing or irreparable harm, and her requested relief is impractical in its enforcement. As such, Plaintiff’s Motion for Preliminary Injunction should be denied. II. PLAINTIFF IS UNABLE TO PREVAIL ON HER SUBSTANTIVE CLAIMS. Plaintiff is unable to prevail on her substantive claims. As to her CLRA claim, it is deficient for three reasons: (1) CLRA does not apply here and Plaintiff’s arguments have been soundly rejected by many courts; (2) Ford's offer letter complies with the Song-Beverly Act; and (3) Plaintiff fails and is unable to identify any specific conduct that violates the CLRA. As to her UCL claim, it fails for two reasons: (1) Plaintiff is unable demonstrate she has lost money or property and (2) she is not established that there is not an adequate remedy at law. A. Plaintiff’s CLRA Allegations Are Legally And Factually Without Merit. The CLRA declares unlawful several methods of competition and unfair or deceptive acts ! This was the subject of Ford’s demurrers to both Plaintiff’s First and Second Amended Complaints. 1 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer. Civ. Code §§ 1750, et. seq. Plaintiff contends that Ford violated sections 1170(a)(14) and (19) of the CLRA related to its offer. See generally, Motion at pp. 9-13. Section 1170(a)(14) makes it unlawful to represent that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law. Section 1170(a)(19) makes it unlawful to insert an unconscionable provision in the contract undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer. Based on the following, Plaintiff's arguments are both factually and legally unsupported and meritless. 1. The CLRA Does Not Apply Here And Plaintiff's Arguments Have Been Soundly Rejected By The Courts. As addressed in Ford’s previously filed Demurrers to both Plaintiff’s First and Second Amended Complaints, the CLRA does not apply to offers to repurchase or replace a vehicle under the Song-Beverly Act. “[A]lthough the CLRA does not require a contractual relationship between the consumer and the defendant, the transaction must result or be intended to result in the sale or lease of goods or services to a consumer.” In re Sony Gaming Networks & Customer Data Sec. Breach Litig. (S.D. Cal. 2012) 903 F. Supp. 2d 942, 972. Indeed, under Civil Code section 1770, there must be “deceptive acts or practices undertaken by any person in a transaction intended to result or that results in in the sale or lease of goods or services to any consumer . . ..” The term “transaction” is defined as “an agreement between a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.” Civ. Code § 1761(e) (emphasis added). Moreover, section 1780(a) provides a cause of action to “[a]ny consumer who suffers any damage as a result of the use . . . of a method, act, or practice declared to be unlawful by Section 1770.” As is clear, Ford’s offer letter was neither the sale nor lease of any good to a consumer. Rather, it was an offer by Ford to repurchase the vehicle from Plaintiff. Further, there was no transaction — i.e., agreement — because Plaintiff rejected the offer. Thus, the CLRA is plainly not applicable to the Ford’s unaccepted offer to Plaintiff. 2 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 Moreover, consistent with the plain language of the CLRA, Plaintiff’s contention that an unaccepted offer to repurchase or replace a vehicle constitutes a violation of the CLRA has been soundly rejected in several cases. See, e.g., Gonzalez v. Ford Motor Co. (C.D. Cal. Mar. 22, 2019) 2019 WL 1364976, at *6-7 (dismissing UCL and CLRA claims with prejudice); Durkee v. Ford Motor Co. (N.D. Cal. Sept. 2, 2014) 2014 WL 4352184, at *9 (same); Robbins v. Hyundai Motor Am. (C.D. Cal. Aug. 7, 2014) 2014 WL 4723505, at *10 (dismissing CLRA claim with prejudice). In analyzing the exact same argument based on a buyback offer, the courts in Gonzalez and Durkee concluded that a plaintiff could not base a CLRA claim on such allegations. Specifically, in Gonzalez, District Judge Percy Anderson explained: “Here, Plaintiffs’ CLRA cause of action is based entirely on Defendant’s allegedly unlawful repurchase offer. . . . Defendant is not a consumer under the CLRA, so, its alleged offer to repurchase Plaintiffs vehicle could not relate to a ‘sale . . . to [a] consumer.” The offer thus falls outside of the scope of the statute.” 2019 WL 1364976, at *7. Similarly, in Durkee, the court concluded: “The transaction involving the repurchase/replacement of plaintiffs’ truck does not fall under the CLRA, as it was not intended to result, and did not result, in the sale or lease of goods or services to a consumer.” 2014 WL 4352184, at *3. Thus, it is clear that the CLRA does not apply to the present scenario and Plaintiff's CLRA claim fails. 2 Ford’s Letter Complies With The Song-Beverly Act. In addition to the CLRA not applying to repurchase offers, Plaintiff’s argument is also based on an entirely false premise —that Ford’s offer letter does not comply with the Song-Beverly Act. This too has been rejected in numerous cases as this Court and at least five different federal judges have found Ford’s offer to be compliant with the Song-Beverly Act. See, e.g., Noemi Perez Sanchez v. Ford Motor Company (Order dated June 29, 2020) Los Angeles County Superior Court Case No. BC692823 (granting summary judgment for Ford based on offer even where the plaintiff rejected it) (attached as Exhibit A to Ford’s Request for Judicial Notice); De Leon v. Ford Motor Co. (C.D. Cal. Nov. 13,2019) 2019 WL 7195325, at *6 (same); Gonzalez v. Ford Motor Co. (C.D. Cal. Oct. 23, 2019) 2019 WL 6122554, at *7 (same); Nunez v. Ford Motor Co. (C.D. Cal. Nov. 15, 2019 Case No. CV 18-9423-JFW (JCx), at *6 (same); Rivera, et al. v. Ford Motor Co. (C.D. Cal. 3 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 Feb. 10, 2020) Case. No. CV 18-07798 DSF (PIJWx), at *6-14 (same). Thus, Plaintiff’s contention the offer letter violated the Song-Beverly Act and therefore violated the CLRA is without merit. 3 Plaintiff Fails And Is Unable To Identify Any Specific Conduct That Violates The CLRA. Furthermore, Plaintiff cannot identify any specific conduct by Ford that constitutes a violation of sections 1170(a)(14) and (19). Other than identifying 14 purported “unenforceable and illegal terms” that Plaintiff contends Ford included in its offer, Plaintiff fails to cite specific facts relating to her specific vehicle that would shed light or otherwise meaningfully identify the alleged violations by Ford as it relates to this case. Instead, Plaintiff’s Motion contains a litany of factual inaccuracies and cites to purported violations for which Plaintiff provide no legal authority or that are otherwise contrary to well-settled law. For example, Plaintiff contends that Ford violated the CLRA by “[i]Jmproperly deducting negative equity from vehicle(s) traded-in from the purported ‘refund’ offer.” See, Motion at 9:19- 28, 12:3-5, 12:26-13:2. This alleged violation has been patently rejected by this Court and several federal courts in the Central District and, at this point, is contrary to well-settled law. See e.g. See, e.g., Noemi Perez Sanchez v. Ford Motor Company (Order dated June 29, 2020) Los Angeles County Superior Court Case No. BC692823 (concluding that restitution means “returning to Plaintiff the funds in which she had an ownership interest prior to purchase of the vehicle” and she did not have ownership in the negative equity of her trade in) (attached as Exhibit A to Ford's Request for Judicial Notice); Gonzalez v. Ford Motor Co. (C.D. Cal. Oct. 23, 2019) 2019 WL 6122554, at *7 (rejecting Plaintiffs’ attempt to recover negative equity and holding that “restoring the status quo prior to the lease transaction does not reasonably include Ford paying off debt for a trade-in that Plaintiff was responsible to pay”); De Leon v. Ford Motor Co. (C.D. Cal. 2019) 2019 WL 7195325, at *4 (holding that Ford could “deduct negative equity from the reimbursement amount” because “restoring the status quo between Plaintiff and Defendant before Plaintiff purchased [the subject vehicle] does not include reimbursing Plaintiff for money owed on [the new vehicle from the trade-in]”); Rivera v. Ford Motor Co., Case 2:18-cv-07798-DSF-PJW, Feb. 10, 2020 Order (Doc. No. 24) at p. 8 (holding that “a manufacturer is not required to include negative 4 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 equity in a repurchase offer under the Song-Beverly Act”) (Exhibit B to Ford's Request for Judicial Notice). There is simply no legal merit to the alleged violation regarding Plaintiff’s negative equity. Plaintiff noticeably does not cite any legal authority that supports her position on this issue. Indeed, Plaintiff’s purchase of the subject vehicle did not involve any trade in that would require the calculation of negative equity, which further underscores the boilerplate nature of Plaintiff’s Motion and requested relief. Another example of Plaintiff’s incorrect assertion that Ford violated the CLRA is evident in her conclusion that Ford “[w]illfully incorrectly calculating the ‘amount directly attributable to use by the buyer’ . . . through the use of the vehicle’s current mileage — failing to ask for the vehicle’s mileage at the first applicable repair or at sale[.]” See Motion at 10:2-8. Consistent with section 1793.2(d)(2)(C), Ford’s calculation of use for Plaintiff’s vehicle was properly based on the miles at the first warranty repair presentation giving rise to the alleged nonconformity and deducting the miles at the time Plaintiff purchased the vehicle. Again, Plaintiff offers nothing specific to identify that her use deduction was calculated improperly. Yet another example is Plaintiff’s contention that Ford violated the CLRA by “[r]equiring that the consumer justify all incidental and consequential damages.” This was raised a nearly identical argument in Rivera v. Ford Motor Co., supra, and the Court there expressly rejected it and found that Ford’s offer (which included similar language regarding incidental and consequential damages) complied with Song-Beverly: “It is undisputed that Ford’s Repurchase Letter included an offer to reimburse Plaintiffs for ‘any incidental or consequential costs actually incurred by you as a result of concerns you have had with your current vehicle,” including ‘out-of-pocket repairs, towing charges, rental car expenses, and other out-of-pocket costs.’[] Because only Plaintiffs know what those damages are, they were asked to ‘provide documentation’ to Ford detailing the consequential damages incurred. . .The Song-Beverly Act does not require manufacturers to be clairvoyant. Ford offered to reimburse Plaintiffs for their consequential and incidental damages; Plaintiffs failed to make and support such a request.” Exh. B at p. 10, 11. These are just a few examples of the factual and legal deficiencies in Plaintiff’s Motion and Plaintiff’s other complaints are equally frivolous. Moreover, each complaint identified in this Motion is unsupported by any evidence to justify a CLRA claim or warrant a preliminary 5 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 injunction. Based on the above, Plaintiff is not likely to prevail at trial on her CLRA claim. B. Plaintiff’s UCL Claim is Similarly Without Merit. Plaintiff has alleged that Ford engaged in unlawful, unfair, and fraudulent business practices in violation of UCL. SAC, qq 49, 59-60. Plaintiff is not likely to prevail on her UCL claim as she failed to allege that she lost any money or property as a result of any act by Ford as required by the UCL, and Plaintiff has not established that there is no adequate remedy at law to avail her to seek the instant preliminary injunction. 1. Plaintiff Has Failed To Allege That She Lost Any Money Or Property. Under the UCL, an individual may only bring an action if he/she “suffered injury in fact and has lost money or property as a result of the [alleged] unfair competition.” Bus. & Prof. Code § 17204; Shersher v. Sup. Ct. (2007) 154 Cal.App.4th 1491, 1500 (holding that “defendant must have acquired the plaintiff’s money or property by means of. . .acts prohibited by UCL”). Where a plaintiff has not suffered any economic injury of any kind, the UCL claim will be dismissed. Schwartz v. Provident Life & Accident Ins. Co. (2013) 216 Cal.App.4th 607, 611. Here, Plaintiff has not paid any money or surrendered any property as a result of the purportedly illegal buyback offer from Ford. Rather, Plaintiff claims she was “forced to engage and incur fees for an attorney to respond to the illegal buyback offer,” “forced to spent [sic] time to engage in consultations and coordinate with counsel,” “delayed in receiving a replacement vehicle or refund,” and she “had to incur costs, including to arrange alternative transportation.” Motion at 13:21-26. None of these amount to compensable recovery under the UCL’s requirement of “lost money or property.” It was Plaintiff’s prerogative to retain counsel and the UCL, CLRA, and Song-Beverly each expressly provide for recovery of attorneys’ fees. Plaintiff cannot reasonably be said to have paid anything. Further underscoring the dubiousness of Plaintiff’s UCL claim, she has not (and cannot) prove that she lost money and that Ford acquired it as a result, which is also required under the UCL. 2, Plaintiff Has Not Established That There Is No Adequate Remedy At Law Available To Her. Under the UCL, “[p]revailing plaintiffs are generally limited to injunctive relief and restitution.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 (citing to 6 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180). Even assuming Plaintiff’s claim possesses merit (which it does not), a claim for equitable relief must allege, and plaintiff must prove, facts showing the inadequacy of legal remedies. Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 204. Plaintiff has not established that she does not have an adequate remedy at law, as she clearly does under the Song-Beverly Act. In Munning v. The Gap, Inc. (N.D. Cal. 2017) 238 F.Supp.3d 1195, 1203, the district court dismissed a UCL claim with prejudice on the ground that the claim is equitable and, as such, “[a] plaintiff seeking equitable relief in California must establish that there is no adequate remedy at law available.” The fact the plaintiff was able to state other claims at law precluded the UCL claim. Id.; Moss v. Infinity Ins. Co. (N.D. Cal. 2016) 197 F.Supp.3d 1191, 1203 (disapproved on other grounds) (dismissing UCL claim where plaintiff had an adequate remedy at law in her other claims, including a breach of contract claim). Furthermore, in Durkee, supra, the plaintiff sued Ford under Song-Beverly, UCL, and CLRA due to the terms of a “buyback option” that Ford offered. The District Court dismissed the CLRA and UCL claims with prejudice because the plaintiff had an adequate remedy at law under the Song-Beverly Act. 2014 WL 4352184, *1, 3 (“because the UCL provides for only equitable remedies, and plaintiffs have an adequate remedy at law for the alleged Song—Beverly Act violation, plaintiff's UCL claim must be dismissed”); Philips v. Ford Motor Co. (N.D. Cal. July 7, 2015) 2015 WL 4111448, at *16 (dismissing CLRA and UCL equitable claims because Plaintiffs failed to show there was no adequate remedy at law). This case is identical to Durkee as Plaintiff here is alleging the same causes of action against Ford based on the same conduct. Plaintiff is similarly pursuing a remedy at law by filing her Song-Beverly claims. As Plaintiff has an adequate remedy at law and already filed her claims, the validity of UCL claim is further undermined and she is not likely to prevail at trial. III. PLAINTIFF IS NOT ENTITLED TO ANY INJUNCTIVE RELIEF. Plaintiff indicates in her Motion that the public would be harmed if an injunction were denied as Ford will “almost certainly continue to send illegal buyback letters to consumers” and that the burden to Ford is minimal as it will only have to “revamp its buyback letters to comply 7 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 with the law.” Motion at 16:3-16. As discussed above, Plaintiff is not entitled to any such relief because Ford’s offer complies with the Song-Beverly Act, and the CLRA is not applicable to unaccepted offer letters to repurchase under the Song-Beverly Act, and Plaintiff's UCL claim is indisputably frivolous. Even setting these aside, Plaintiff’s requested injunction is still meritless for numerous reasons. A. Plaintiff Lacks Standing To Bring The Instant Motion. As a preliminary matter, the request for an injunction that applies to any other consumer is entirely improper as Plaintiff has not brought her claims in this case as a class action, and she undoubtedly cannot meet the procedural requirements set forth in Civil Code § 1781. Plaintiff also lacks standing to seek injunctive relief on behalf of other consumers as they did not “suffer any damage” due to the alleged conduct as Plaintiff never accepted the offer that she complains about in her Motion. Civil Code § 1780(a). B. Plaintiff’s Motion Presupposes The Song-Beverly Act Applies When Offer Letters Are Extended. Plaintiff’s arguments are based on the fundamentally flawed presumption that all vehicles that receive an offer to repurchase or replace actually qualified for repurchase or replacement. Ford, or any manufacturer, is not obligated to offer to repurchase or replace any vehicle unless, among other requirements, there were non-conformities (i.e., defects that substantially impaired the use, value or safety of the vehicle) that could not be repaired after a reasonable number of repair attempts. Civ. Code § 1793.2(d)(1). Simply because Ford made an offer to repurchase or replace a vehicle does not establish that a vehicle actually qualified. Qualification is a factual issue that has to be decided by a jury on a case-by-case basis. Only after establishing qualification, among other prerequisites, can an obligation to offer to repurchase or replace a vehicle arise. A broad sweeping injunction that prevents Ford from sending out what Plaintiff (wrongly) asserts are “illegal” settlement offer letters would improperly preclude Ford from making offers to consumers where their vehicles do not even qualify and where Ford has no obligation to make any offer at all. Such an overbroad injunction request is far beyond the proper bounds of injunctive relief, especially where Plaintiff has not established that her vehicle (or any other vehicle) actually 8 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 qualified for a repurchase or replacement offer. C. Plaintiff Cannot Establish Any Continued Wrongdoing Such That A Preliminary Injunction Would Be Proper. Because Plaintiff has already filed suit, there is no fear that she will be faced with another alleged “illegal” offer. In Gonzalez, supra, which involved nearly identical allegations as here, District Judge Percy Anderson held plaintiff “lacks standing to pursue injunctive relief under the UCL” because the “SAC’s allegations indicated that Plaintiff [had] rejected Defendant’s offer and would not accept it if presented again.” Here, Plaintiff seeks an injunction preventing Ford from making buy-back requests because she claims such requests violate the Song-Beverly Act. As in Gonzalez, there is little fear that Plaintiff—who did not accept the previous offer—will accept a buy-back in this case if her attorneys believe such a buy-back violates the law. There is also no fear that another buy-back request will be made to Plaintiff given that she chose to sue instead of accepting Ford’s offer. In re Sony, supra, is also apposite. There, as here, the plaintiffs brought claims under the UCL and CLRA and sought both restitution and injunctive relief. The trial court, however, dismissed both claims for failing to plead any entitlement to restitution or injunctive relief. For restitution, the Court concluded that “Plaintiffs are not entitled to such relief because Plaintiffs paid monies to third parties—not Sony—any loss of value . . . did not accrue to Sony.” Id. at 970. Further, “with regard to injunctive relief . . . Plaintiffs . . . failed to state what injunctive relief, if any, they are entitled to, or how such relief would be warranted as there is no continuing wrong that needs to be rectified.” Id. Similar to In re Sony, Plaintiff cannot establish the basis for any restitution or injunctive relief against Ford. Plaintiff has not, and cannot, plead that she lost any money as a result of the buy-back settlement offer because she did not accept it. Furthermore, Plaintiff cannot establish that there is any continuing wrong that can be rectified. D. Plaintiff Cannot Identify Irreparable Harm In The Absence of An Injunction. As discussed above, Plaintiff's requested preliminary injunction is improper as she has an adequate remedy at law and will not suffer irreparable harm in the absence of such injunctive 9 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 relief. It is a basic doctrine of equity jurisprudence that courts of equity should not act . . . when the moving party has an adequate remedy at law.” Mort v. U.S. (9th Cir. 1996) 86 F.3d 890, 892. In Gonzalez, supra, the plaintiff asserted a CLRA/UCL claim against Ford, which was also premised on Ford’s offer to repurchase his vehicle. In dismissing Gonzalez’s UCL claim without leave to amend, District Judge Percy Anderson held that “Plaintiff’s claim is based only on Defendant’s allegedly unlawful repurchase offers, which allegedly violate the Song-Beverly Act and are the basis for his third cause of action...” and thus “Plaintiff ... has an adequate remedy at law under the Song-Beverly Act.” Gonzalez, 2019 WL 1364976, at *6 (citing Madrigal v. Hint, Inc. (C.D. Cal. Dec. 14, 2017) WL 6940534, at *4-5). As Plaintiff is similarly pursuing a remedy at law by filing her Song-Beverly claims, her demand for injunctive relief and assertion she will suffer irreparable harm if Ford is not enjoined from making further offers is meritless. E. Plaintiff’s Motion Envisions An Absurd Scenario With The Courts Regularly Supervising Ford’s Out-Of-Court Settlement Endeavors. The requested relief is improper as it will embroil the courts in ongoing supervision of business practices, lead to a multiplicity of suits, and is incapable of meaningful enforcement. See, e.g., Diaz v. Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 599 (injunctive relief improper where impossible to administer); Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal. App.4th 554, 565 (injunction improper where it would result in unwarranted judicial intervention into an area of complex economic policy). Further, it would result in the absurdity of a court prohibiting Ford from making offers to consumers that other courts have deemed to be compliant with the law. This would undoubtedly undermine any incentive to engage in out-of-court settlements and is patently unrealistic in any attempts to enforce. 111 111 111 111 111 111 10 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L. L. P. L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Ford respectfully requests that the Court deny Plaintiff’s motion for preliminary injunction. Dated: July 15, 2020 SNELL & WILMER L.L.P. [4.00 o— y / L/ Liha ~A Ll 41 By: - ax TWILL Oat Warren E. Platt Katharine H. Adams Attorneys for Defendant FORD MOTOR COMPANY 11 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION L L P . L A W OF FI CE S 60 0 AN TO N BL VD , SU IT E 14 00 CO ST A ME SA , CA LI FO RN IA 92 62 6- 76 89 S N E L L & W I L M E R ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 600 Anton Boulevard, Suite 1400, Costa Mesa, CA 92626-7689. On July 15, 2020, I served, in the manner indicated below, the foregoing document described as DEFENDANT FORD MOTOR COMPANY’S OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION on the interested parties in this action by placing true copies thereof, enclosed in sealed envelopes, at Costa Mesa, addressed as follows: Steve Mikhov, Esq. ATTORNEYS FOR PLAINTIFF Amy Morse, Esq. KNIGHT LAW GROUP, LLP Tel: 310.552.2250 10250 Constellation Blvd., Suite 2500 Fax: 310.552.7973 Los Angeles, CA 90067 i stevem@knightlaw.com amym @knightlaw.com [] BY REGULAR MAIL: I caused such envelopes to be deposited in the United State mail at Costa Mesa, California, with postage thereon fully prepaid. I am readil familiar with the firm’s practice of collection and processing correspondence fo mailing. It is deposited with the United States Postal Service each day and that practic was followed in the ordinary course of business for the service herein attested t (C.C.P. § 1013(a)). BY FACSIMILE: (C.C.P. § 1013(e)(f)). BY FEDERAL EXPRESS/ OVERNITE EXPRESS: I caused such envelopes to b delivered by air courier, with next day service, to the offices of the addressees. (C.C.F § 1013(c)(d)). xl [ 1 [x] BY EMAIL: I caused such document to be delivered by electronic service as it ha been authorized and agreed upon (C.C.P. § 1010.6 (a)(6)) [] BY PERSONAL SERVICE on: I caused such envelopes to be delivered by hand to th offices of the addressees. (C.C.P. § 1011(a)(b)). sek sfesk desk feok I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 15, 2020, at Costa Mesa, California. Carol Rico 4830-0863-4049 12 DEFENDANT FORD’S OPPOSITION PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
