Altamirano-Torres v. Ford Motor Co. (In re Ford Motor Co. DPS6 Powershift Transmission Prods. Liab. Litig.)

• Decision Date: 02 September 2020
• Docket Number: Case No. 18-ML-02814 AB (FFMx), Case No. CV-17-07338 AB (FFMx)
• Court: U.S. District Court — Central District of California
• Parties: IN RE: FORD MOTOR CO. DPS6 POWERSHIFT TRANSMISSION PRODUCTS LIABILITY LITIGATION This Document Relates to: Lorenzo Altamirano-Torres v. Ford Motor Co., et al.

483 F.Supp.3d 838

IN RE: FORD MOTOR CO. DPS6 POWERSHIFT TRANSMISSION PRODUCTS LIABILITY LITIGATION

This Document Relates to:

Lorenzo Altamirano-Torres v. Ford Motor Co., et al.

Case No. 18-ML-02814 AB (FFMx)

Case No. CV-17-07338 AB (FFMx)

United States District Court, C.D. California.

Signed September 2, 2020

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE

Before the Court is Defendant Ford Motor Company's ("Ford") Motion for Judgment on the Pleadings. ("Motion," Dkt. No. 839.)¹ Plaintiff Lorenzo Altamirano-Torres ("Plaintiff") filed an opposition and Ford filed a reply. The Court heard oral argument on August 21, 2020. The Motion is GRANTED.

I. BACKGROUND

This is one of more than 1,000 member cases of the multidistrict litigation In re Ford Motor Co. DPS6 Powershift Transmission Prods. Liability Litig. , Case No. 18-ML-02814, concerning allegedly defective DPS6 dual-clutch powershift transmissions installed in certain Ford vehicles. Like most of the plaintiffs in the MDL, Plaintiff herein asserts claims for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act, Cal. Civ. Code §§ 1790 - 1795.5 ("Song-Beverly" or "Act") (Counts 1 and 2), along with a request for a civil penalty under the Act, and three claims for fraudulent inducement by concealment (Count 3), by intentional misrepresentation (Count 4), and by negligent misrepresentation (Count 5), along with a request for punitive damages, all arising out of an allegedly defective DPS6 transmission with which his 2014 Ford Focus was equipped. See generally Complaint (Altamirano-Torres Dkt. No. 1-1).

Ford now moves for judgment on the pleadings on the fraud claims. Earlier in this MDL, the Court resolved motions for judgment on the pleadings as to four cases, issuing an order that addressed many of the same issues. See Order Re: Motions for Judgment on the Pleadings ("Prior Order," Dkt. No. 301). Some of the Court's rulings herein differ in some respects from those in the Prior Order.

II. LEGAL STANDARD

"After the pleadings are closed – but early enough to not delay trial – a party may move for judgment on the pleadings." Fed. R. Civ. Proc. 12(c). The standard for assessing a Rule 12(c) motion for judgment on the pleadings is the same as the standard for a Rule 12(b)(6) motion to dismiss. Enron Oil Trading & Trans. Co. v. Walbrook Ins. Co., Ltd. , 132 F.3d 526, 529 (9th Cir. 1997).

To defeat a Rule 12(b)(6) motion to dismiss, the complaint must provide enough factual detail to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint must also be "plausible on its face," that is, the "complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Labels, conclusions, and "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

A court may dismiss a complaint under Rule 12(b)(6) based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). When ruling on a Rule 12(b)(6) motion, "a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). But a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted).

The court generally may not consider materials other than facts alleged in the complaint and documents that are made a part of the complaint. Anderson v. Angelone , 86 F.3d 932, 934 (9th Cir. 1996). However, a court may consider other materials if (1) the authenticity of the materials is not disputed and (2) the plaintiff has alleged the existence of the materials in the complaint or the complaint "necessarily relies" on the materials. Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). The court may also take judicial notice of undisputed facts that are contained in extrinsic materials. Mir v. Little Co. of Mary Hosp. , 844 F.2d 646, 649 (9th Cir. 1988) ; Lee , 250 F.3d at 689-90.

III. DISCUSSION

A. Plaintiff's Claims for Intentional and Negligent Misrepresentation Fail.

The elements of intentional misrepresentation are: "(a) misrepresentation; (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." CACI 1900 ; Engalla v. Permanente Medical Group, Inc. , 15 Cal.4th 951, 974, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997). "[F]alse representations made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered." Id. Claims for fraud based on intentional and negligent misrepresentation are identical except for the intent requirement. Salone v. Bank of Am., N.A. , No. 5:17-cv-01721-AB, 2018 WL 3815041, at *4 (C.D. Cal. June 22, 2018). As relevant here, both claims require "a positive assertion, not merely an omission." Lopez v. Nissan N. Am., Inc. , 201 Cal.App.4th 572, 596, 135 Cal.Rptr.3d 116 (2011).

In federal court, "[in] alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). " Rule 9(b) requires a plaintiff averring fraud to plead the ‘who, what, when, where, and how’ of the alleged misconduct." Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1106 (9th Cir. 2003).

As in the previous cases, Plaintiff alleges that Ford engaged in two kinds of misrepresentations and/or omissions: (1) that Ford advertised the DPS6 transmission as an "automatic transmission," but that it was not a typical automatic transmission, and (2) that Ford represented that the vehicles would perform in a certain way, but defects in the DPS6 transmission caused performance issues inconsistent with Ford's representations. Ford contends that Plaintiff did not plead either kind of misrepresentation adequately. As before, for purposes of this motion, the parties do not address the intentional and negligent misrepresentation claims separately, which makes sense because the arguments turn on whether a cognizable misrepresentation was adequately alleged. The Court will likewise address the claims together.

1. Plaintiff's Misrepresentation Claims Based on Performance Representations Fail.

Regarding the performance issues, Plaintiff alleges that he reviewed "marketing brochures, viewed television commercials and/or heard radio commercials about the qualities of the" Focus. See Compl. ¶ 71. Plaintiff also alleges that Ford's marketing brochure for the Focus stated that the "On Titanium, standard PowerShift 6-speed automatic delivers torque to the drive wheels 100% of the time during shifts, supplying quick response and acceleration," id. ¶ 146(a), but that the vehicle "had extremely poor handling on all roads, as Plaintiff's drive was repeatedly interrupted by jerky shifts and hesitation." Id. ¶ 147. The Court previously found similar allegations inadequate: the allegations in paragraph 71 do not specify what materials Plaintiff viewed and what performance claims therein he relied upon, while the allegation in paragraph 146(a) refers to a marketing brochure, but does not allege that Plaintiff viewed and relied upon it. Plaintiff fails to distinguish between his misrepresentation claims insofar as they are based on the performance of the vehicle, versus the nature of the transmission. Plaintiff fails to respond to Ford's argument regarding the performance basis of these claims, and fails to point to any more robust allegations in the Complaint. Plaintiff's failure to respond to this argument constitutes his abandonment of the performance basis of his misrepresentation claims. Ford is therefore entitled to judgment on this aspect of those claims.

2. Plaintiff's Misrepresentation Claims Based on the "Automatic Transmission" Representation Fail.

Ford also argues that the misrepresentation claims fail insofar as Plaintiff alleges Ford misrepresented that the vehicle was equipped with an "automatic transmission." Ford points to dictionary definitions of the term "automatic" to show that no reasonable consumer would interpret the term "automatic" in the way that Plaintiff claims he did. As Plaintiff points out, the Court rejected this argument in its earlier Order, see Prior Order p. 6, however, upon further consideration, it prevails.²

Ford contends, and Plaintiff does not dispute, that Plaintiff's misrepresentation claims are governed by the "reasonable consumer" test. Williams v. Gerber Prods. Co. , 552 F.3d 934, 938 (9th Cir. 2008). This standard requires Plaintiff to "show that members of the public are likely to be deceived." Id. (quotation marks and citation omitted); see also Bank of West v. Superior Court , 2 Cal.4th 1254, 1257, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992). This requires more than a mere possibility that a representation "might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner." Lavie v. Procter & Gamble Co. , 105 Cal.App.4th 496, 508, 129 Cal.Rptr.2d 486 (2003) (rejecting position that "unreasonable expectations or perceptions of the least...