Rodrigues v. General Motors LLC

[5] 6 UNITED STATES DISTRICT COURT [7] NORTHERN DISTRICT OF CALIFORNIA [9] 10 ANNETTE RODRIGUES and CHARLES SMITH, 11 No. C 23-04488 WHA Plaintiffs, [12] v. 13 ORDER DENYING LEAVE GENERAL MOTORS LLC, a limited TO AMEND 14 liability company; and DOES 1 through 10, inclusive, [15] Defendants. [17] 18 Last month, an order denied a motion to remand and granted a motion to dismiss 19 plaintiffs Annette Rodrigues and Charles Smith’s fraud claims (Dkt. No. 35). That order also 20 dismissed their remaining claims, which were brought under the Song-Beverly Act and simply 21 restated elements without alleging specific facts. Plaintiffs were allowed to seek leave to file 22 an amended complaint by motion and encouraged to plead their best case. Upon review of 23 plaintiffs’ motion for leave to file an amended complaint and proposed amended complaint, 24 that motion is DENIED.1 [26] 1 Plaintiffs also separately filed an “Opposition to General Motors LLC’s Motion to Dismiss” [27] (Dkt. No. 38). Seeing that there is no pending motion to dismiss, and that the arguments in this 1 Rule 15(a)(2) provides that leave to amend shall be freely given “when justice so 2 requires.” “When considering whether to grant leave to amend, a district court should consider 3 several factors including undue delay, the movant’s bad faith or dilatory motive, repeated 4 failure to cure deficiencies by amendments previously allowed, undue prejudice to the 5 opposing party, and futility.” Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th 6 Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “Futility of amendment can, by 7 itself, justify the denial of a motion for leave to amend. If no amendment would allow the 8 complaint to withstand dismissal as a matter of law, courts consider amendment futile.” 9 Kroessler v. CVS Health Corp., 977 F.3d 803, 815 (9th Cir. 2020) (internal quotation and 10 citations omitted). 11 Plaintiffs seek to resurrect only their claims brought under the Song-Beverly Act: breach 12 of express warranty, breach of implied warranty, and violation of Section 1793.2. Alas, these 13 amended claims would fare no better than their predecessors. 14 To state a claim for breach of express warranty, plaintiffs must show that “the vehicle 15 had a nonconformity covered by the express warranty that substantially impaired the use, value 16 or safety of the vehicle.” See Oregel v. Am. Isuzu Motors, Inc., 90 Cal. App. 4th 1094 , 1101 17 (Cal. Ct. App. 2001). To state a claim for breach of implied warranty, they must show that the 18 vehicle was unfit for its ordinary purpose. See Am. Suzuki Motor Corp. v. Superior Ct., 37 Cal. 19 App. 4th 1291, 1298–99 (Cal. Ct. App. 1995). And, to state a claim for violation of Section 20 1793.2, the Song-Beverly Act’s replace-or-refund provision, they must show a breach of 21 express warranty and, therefore, a nonconformity as set out above. See Cal. Civ. Code 22 § 1793.2(d). Simply put, all of these claims require a showing that plaintiffs’ vehicle 23 experienced some defect. No such defect was alleged previously. So too here. 24 In their proposed amended complaint, plaintiffs broadly contend that they presented the 25 vehicle to a dealership on five occasions “for repair due to a defect in the vehicle’s battery” 26 (Proposed Amd. Compl. ¶¶ 14–18). But, as defendant General Motors observes, plaintiffs fail 27 to adequately elaborate. Note they do not allege that their vehicle’s battery caught on fire, 1 2021 recall, which was the subject of plaintiffs’ original complaint. In fact, rather than address 2 the judge’s observation that searching their VIN on General Motors’ recall webpage turned up 3 no existing recall — as requested in the prior order2 — plaintiffs went ahead and omitted all 4 mention of the recall. As such, they do not contest that recall repair for this vehicle has been 5 completed. 6 Taking a different tack, plaintiffs now suggest that the defect was introduced by recall 7 repair. Specifically, plaintiffs suggest that the defect is a reduction in their vehicle’s charging 8 capacity. It is undisputed that General Motors reduced the Chevrolet Bolt charging capacity 9 using software to limit the risk of fire while working through the 2021 recall. Plaintiffs allege 10 that the battery charging capacity of their vehicle was reduced by ten percent in November 11 2021, and that it was reprogrammed in December 2021, May 2022, and July 2023 (Proposed 12 Amd. Compl. ¶¶ 14–16, 18). Recall notices reflect that General Motors initially reduced 13 charging capacity by ten percent as an interim fix starting in August 2021, and that advanced 14 diagnostic software it rolled out in June 2023 to continuously monitor batteries in lieu of 15 replacing them reduces charging capacity by twenty percent for 6,200 miles before 16 automatically returning vehicles to a maximum state-of-charge and proceeding to monitor.3 17 Such limited reductions in charging capacity do not substantially impair the use, value, or 18 safety of a vehicle, or render it unfit for its ordinary purpose. 19 To the extent plaintiffs want their preferred replacement battery instead of advanced 20 diagnostic software, they want too much. Of course, if their software detects a problem in their 21 existing battery, plaintiffs will be alerted to contact a certified General Motors dealer to have [23] 2 See Dkt. No. 35 n.3 (citing General Motors, GM Recall and Warranty Center (last accessed Dec. 21, 2023), https://perma.cc/G6EV-EZR6). Meanwhile, searching plaintiffs’ VIN on the [24] National Highway Traffic Safety Administration (“NHTSA”) website likewise turned up no existing recall. See NHTSA, Safety Issues & Recalls (last accessed Jan. 26, 2024), [25] https://perma.cc/K6Y4-H8ZE. [26] 3 General Motors, Product Safety Recall N212345940 High Voltage Battery May Melt or Burn (Aug. 2021), https://perma.cc/GA6T-XMRH; General Motors, Safety Recall N212345944 High [27] Voltage Battery May Melt or Burn (June 2023), https://perma.cc/MNY5-UXB5. See FRE 201; 1 that battery replaced.* But plaintiffs have not alleged that their software has detected a 2 problem in their battery (or that a certified General Motors dealer has failed to replace their 3 battery under such circumstances). In any event, it appears that plaintiffs and their counsel do 4 not really want a replacement battery but rather a windfall far greater than the value of their 5 vehicle, even accounting for the reduction in damages sought in the proposed amended 6 complaint, now not to exceed $74,500 (Proposed Amd. Compl., Prayer for Relief). 7 Because amendment would be futile, the motion for leave to file an amended complaint 8 is DENIED. Judgment shall be entered accordingly. 9 IT IS SO ORDERED. [10] 11 Dated: January 30, 2024. [12] ~ ILLIAM ALSUP 14 UNITED STATES DISTRICT JUDGE [16] = 17 Z 18 [27] 28 4 See Safety Recall N212345944,