On 09/20/2016 ROSA MAY filed a Contract - Other Contract lawsuit against MERCEDES-BENZ USA LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MERCEDES-BENZ USA LLC
DOES 1 THROUGH 10
TK HOLDINGS INC
LEMON LAW AID INC.
KAUFMAN JOSEPH A
UNIVERSAL JON D
3/14/2018: Minute Order
6/21/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
9/17/2018: CASE MANAGEMENT ORDER701298
10/24/2018: Memorandum of Points & Authorities
1/7/2019: Minute Order
3/27/2019: Memorandum of Points & Authorities
3/27/2019: Request for Judicial Notice
5/15/2019: Minute Order
9/20/2016: COMPLAINT FOR RESTITUTION AND DAMAGES
6/28/2017: NOTICE OF MOTION AND MOTION TO AMEND COMPLAINT; DECLARATION OF JOSEPH A. KAUFMAN
8/23/2017: PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO AMEND COMPLAINT "VIA FAX"
9/25/2017: Minute Order
Separate Statement; Filed by Rosa May (Plaintiff)Read MoreRead Less
Motion for Summary Judgment; Filed by Rosa May (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 24; Hearing on Motion for Terminating Sanctions - HeldRead MoreRead Less
Minute Order ( (Hearing on Motion for Terminating Sanctions)); Filed by ClerkRead MoreRead Less
Reply (Plaintiff's Reply to Mercedes-Benz USA, LLC's Opposition to Plaintiff's Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions in the Amount of $10,109.62 and an Order to Compel Defendant Mercedes-Benz USA, LLC to Comply with the Court); Filed by Rosa May (Plaintiff)Read MoreRead Less
Separate Statement; Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
Opposition (Defendant Mercedes-Benz USA, LLC's Opposition to Plaintiff's Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Defendant Mercedes-Benz USA, LLC); Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
Declaration (Declaration of Nejla Nassian in Support of Defendant Mercedes-Benz USA, LLC's Opposition to Plaintiff's Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Defendant Mercedes-Benz USA, LLC); Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
Declaration (Declaration of Adam G. Khan in Support of Defendant Mercedes-Benz USA, LLC's Opposition to Plaintiff's Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Defendant Mercedes-Benz USA, LLC); Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
Declaration (Declaration of Jon D. Universal in Support of Defendant Mercedes-Benz USA, LLC's Opposition to Plaintiff's Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Defendant Mercedes-Benz USA, LLC); Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
DEFENDANT MERCEDES-BENZ USA, LLC S ANSWER TO COMPLAINTRead MoreRead Less
Answer; Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
DEFENDANT MERCEDES-BENZ USA, LLC S CIVIL DEPOSIT FORMRead MoreRead Less
Miscellaneous-Other; Filed by Mercedes-Benz USA, LLC (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Rosa May (Plaintiff)Read MoreRead Less
COMPLAINT FOR RESTITUTION AND DAMAGESRead MoreRead Less
Case Number: BC634465 Hearing Date: April 23, 2021 Dept: 32
ROSA MAY, an individual,
MERCEDES BENZ U.S.A., LLC, a limited liability company, et al.
Case No.: BC634465
Hearing Date: April 23, 2021
[TENTATIVE] order RE:
motion TO COMPEL ARBITRATION
Plaintiff Rosa May (Plaintiff) commenced this lemon law action against Defendant Mercedes Benz U.S.A., LLC (“Mercedes”) on September 20, 2016. The Complaint asserts causes of action under the Song-Beverly Act.
MOTION TO COMPEL ARBITRATION
Defendant Mercedes moves to compel Plaintiff to submit this action to binding arbitration.
Mercedes presents a copy of the Vehicle’s Retail Installment Sale Contract (Sale Contract) entered into by Plaintiff and Mercedes Benz of Encino. (Nassihi Decl. Ex. 1.) The Sale Contract contains an arbitration clause which states in pertinent part:
Any claim or dispute…(including any dispute over the interpretation, scope, or validity of this contract, Arbitration section or the arbitrability of any issue), between you and us…which arises out of or relates to a credit application, this contract, or any resulting transaction or relationship arising out of this contract shall…be resolved by a neutral, binding arbitration and not by a court action.
(Nassihi Decl., Ex. A, p. 2.)
The Important Contract of Arbitration in the Credit Authorization Form similarly
Any claim or dispute…(including any dispute over the interpretation, scope, or validity of this Contract of Arbitration or the arbitrability of any issue), between Us…which arises out of or relates to the credit application, this contract, an installment sale contract or lease agreement, or any resulting transaction or relationship (including any such relationship with third parties who do not sign this Application and Contract of Arbitration) shall…be resolved by a neutral, binding arbitration and not by a court action.
(Nassihi Decl., Ex. B, p. 2.)
Plaintiff’s causes of action fall within the broad scope of this arbitration clause because the causes of action relate to the purchase and condition of the Vehicle. (See Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189 (noting that “arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question”).)
The disposition of this motion turns on whether Mercedes, a nonsignatory to the Sales Contract, may compel Plaintiff to arbitrate his claims pursuant to this arbitration clause.
Mercedes contends that two nonsignatory theories support its motion: (1) third party beneficiary and (2) equitable estoppel. Because the Court concludes that the equitable estoppel doctrine applies, the Court need not address the merits of Mercedes’ third party beneficiary theory.
Under the doctrine of equitable estoppel, “a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.” (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1237.) The doctrine applies in either of two circumstances: (1) when the signatory must rely on the terms of the written agreement containing the arbitration clause in asserting its claims against the nonsignatory or (2) when the signatory alleges “substantially interdependent and concerted misconduct” by the nonsignatory and a signatory and the alleged misconduct is “founded in or intimately connected with the obligations of the underlying agreement.” (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 218-19.) At bottom, “the linchpin for equitable estoppel is equity — fairness.” (Id. at 220.)
In Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, the California Court of Appeal examined a nearly identical arbitration clause which stated in pertinent part: “[A]ny claim or dispute, whether in contract, tort, statute or otherwise … between you and us … which arises out of or relates to … [the] condition of this vehicle, this contract or any resulting transaction (including any such relationship with third parties who do not sign this contract) shall … be resolved by neutral, binding arbitration and not by a court action.” The appellate court found that the equitable estoppel doctrine applied: “The [buyers’] claim against [the manufacture] directly relates to the condition of the vehicle that they allege to have violated warranties they received as a consequence of the sales contract. Because the [buyers] expressly agreed to arbitrate claims arising out of the condition of the vehicle — even against third party nonsignatories to the sales contract — they are estopped from refusing to arbitrate their claim against [the manufacturer]. Consequently, the trial court properly ordered the [buyers] to arbitrate their claim against [the manufacturer]. (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496-97.)
Mercedes contends that the equitable estoppel doctrine applies because Plaintiff’s claims are inextricably intertwined with the Sales Contract. The Court agrees.
This arbitration agreement is not materially different from the one examined in Felisilda. In this case, like the buyers’ claims in Felisilda, Plaintiff’s claims against BMWNA “directly relate to the condition of the vehicle that [allegedly] violated warranties [Plaintiff] received as a consequence of the sales contract.” Because Plaintiff “expressly agreed to arbitrate claims arising out of the condition of the vehicle — even against third party nonsignatories to the sales contract — [Plaintiff is] estopped from refusing to arbitrate [his] claim against [BMWNA].” As such, the Court must reach the same result here.
California law reveals a strong interrelationship between warranties and underlying purchase agreements. “A warranty is a contractual term concerning some aspect of the sale, such as title to the goods, or their quality or quantity.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200 (emphasis added).) “A warranty is as much one of the elements of sale and as much a part of the contract of sale as any other portion of the contract and is not a mere collateral undertaking.” (A. A. Baxter Corp. v. Colt Industries, Inc. (1970) 10 Cal.App.3d 144, 153.) To this point, in reviewing the Song-Beverly Act’s legislative history, the California Supreme Court has noted that “the Legislature apparently conceived of an express warranty as being part of the purchase of a consumer product.” (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246, 1258; see also Felisilda, supra, 53 Cal.App.5th at 496 (“[T]he sales contract was the source of the warranties at the heart of this case.”).)
In view of this legal backdrop, the equitable estoppel doctrine applies in lemon law cases like this because the buyer relies upon the underlying purchase agreement to (1) establish standing, (2) invoke implied warranties, and (3) obtain remedies.
Standing: Standing to bring Song-Beverly Act claims is limited to a “buyer of consumer goods” (Civ. Code § 1794(a)), which the Song-Beverly Act defines as “any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail.” (Civ. Code § 1791(b).) Without this purchase agreement, Plaintiff cannot meet this standing requirement or, indeed, the standing requirement for any warranty claim. (Jones, supra, 198 Cal.App.4th at 1201 (“As a general rule, a cause of action for breach of implied [or express] warranty requires privity of contract; ‘there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.’ ”).)
Implied Warranties: The implied warranty of merchantability attaches to “every sale of consumer goods that are sold at retail in this state,” unless properly disclaimed. (Civ. Code § 1792.) Without the Sales Contract, Plaintiff would have no implied warranties to invoke.
Remedies: According to the Complaint, Plaintiff seeks to “reimbursement for the costs of financing, and owning the Vehicle” and “rescission of the purchase agreement of the Vehicle.” These remedies require examination and presentation of the Sales Contract.
Because the Sales Agreement underlies Plaintiff’s causes of action, the equitable estoppel doctrine must apply.
Plaintiff’s reliance on federal court authorities reaching a contrary conclusion is unavailing. These federal court authorities are (1) nonbinding, (2) were (in part) disregarded by the Felisilda court, and (3) fail to persuasively disentangle a warranty from an underlying purchase agreement for purposes of an equitable estoppel analysis.
The reasoning in Felisilda for upholding the equitable estoppel finding was that the buyers’ claims related to the condition of the subject vehicle and the buyers expressly agreed to arbitrate their claims arising out of the condition of the subject vehicle, including those against third party nonsignatories to the sales contract. This same finding has been made here.
In sum, the equitable estoppel doctrine applies and enables Mercedes to compel Plaintiff to arbitrate his claims against Mercedes.
Based upon the court’s ruling the motion to compel, Mercedes’ demurrer is moot
Mercedes’s motion to compel arbitration is granted.
Demurrer is denied as moot.
Matter is stayed in its entirety, and Status re Arbitration or Dismissal is set for November 18, 2021.
Case Number: BC634465 Hearing Date: March 19, 2021 Dept: 32
MERCEDES-BENZ USA LLC, et. al.
Case No.: BC634465
Hearing Date: March 19, 2021
[TENTATIVE] order RE:
MOTION to tax costs
Plaintiff ROSA MAY (Plaintiff) commenced this action on September 20, 2016. First Motor Group was dismissed with prejudice from this action on December 17, 2020.
Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (CCP § 1032(b).)
Under California law, a defendant that is dismissed from an action is deemed the “prevailing party,” whether the dismissal is voluntary or involuntary. Cal. Civ. Proc. Code § 1032(a)(4); Santisas v. Goodin, 17 Cal. 4th 599, 606 (1998); City of Long Beach v. Stevedoring Services of America, 157 Cal. App. 4th 672, 678 (2007).
“In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. ‘If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.’ [Citation.] Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary. [Citation.] ‘Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.’ [Citation.]” (Foothill-De Anza Community College Dist. v. Emerich (Foothill) (2007) 158 Cal.App.4th 11, 29-30.)
Plaintiff moves to tax First Motor Group’s (FMG) Memorandum of Costs (MOC).
A. Filing and motion fees.
B. FMG is entitled to recover the sum of $1,370 for filing and motion fees.
Filing and motion fees are expressly recoverable as costs. Cal. Civ. Proc. Code 1033.5(a)(1); Heppler v. J.M. Peters Co., 73 Cal. App. 4th 1265 (1999).
Here, FMG incurred court filing fees totaling the sum of $1,370 that were reasonably necessary to defend itself in the Action for filing the following documents: (1) Notice to Court and Adverse Party of Removal to Federal Court ($435) (Mayo Decl. ¶ 4, Ex. A); (2) Opposition to Plaintiff’s Motion for Summary Adjudication ($435) (FMG’s first appearance fee) (Mayo Decl. ¶ 5, Ex. B); and (3) FMG’s Motion for Summary Judgment ($500) (Mayo Decl. ¶ 10, Ex. G).
As such, FMG is entitled to recover the sum of $1,370 for filing and motion fees.
C. Jury Fees.
Jury fees are expressly recoverable as costs. Cal. Civ. Proc. Code 1033.5(a)(1). Here, FMG incurred jury fees in the amount of $150, which were reasonably necessary to defend itself in the action. (Mayo Decl. ¶ 6, Ex. C)
As such, FMG is entitled to recover the sum of $150 for jury fees.
D. Deposition Transcription Costs
Costs for “Taking, video recording, and transcribing necessary depositions, including an
original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed” are expressly recoverable as costs. (Cal. Civ. Proc. Code
FMG incurred costs in the amount of $419 for ordering a transcript of the
deposition of Jeremy Chamberlain. (Chamberlain’s deposition. Mayo Decl. ¶ 7, Ex. D.) FMG is entitled to these costs.
FMG, however, is not entitled to recover the $33.64 for its attorney’s travel cost. This amount is taxed.
E. Court Reporter Fees
“Court reporter fees as established by statute” are expressly recoverable as costs. (Cal. Civ. Proc. Code 1033.5(a)(11))
FMG incurred reasonable and necessary costs in the amount of $700 for the attendance of a court reporter of the Los Angeles County Superior Court at the hearing on FMG’s Motion for Summary Judgment on September 25, 2020. (Nassihi Decl. ¶ 5, Ex. D.)
As such, FMG is entitled to recover the sum of $700 for court report fees.
F. Electronic filing service provider.
“Fees for the electronic filing or service of documents through an electronic filing service
provider if a court requires or orders electronic filing or service of documents” are expressly
recoverable as costs. (Cal. Civ. Proc. Code 1033.5(a)(14).)
FMG incurred fees in the total amount of $33.80 for the court-required electronic filing. (Mayo Decl. ¶¶ 5-6, 9, Ex.’s A-B, and F; Nassihi Decl., ¶ 10, Ex. F.)
As such, FMG is entitled to recover the sum of $33.80 for electronic filing fees.
Plaintiff’s motion to tax costs is granted in part. FMG costs are taxed in the amount of $33.64.
Case Number: BC634465 Hearing Date: October 22, 2020 Dept: 24
Plaintiff Rosa May’s motion for consolidation is GRANTED.
On September 20, 2016, Plaintiff Rosa May (“May”) filed a lemon law action against Defendant Mercedes-Benz USA, LLC (“MBUSA”) under LASC Case no. BC634465. She alleges she purchased a Certified Pre-Owned 2009 Mercedes-Benz on March 27, 2017 that suffered from defects and nonconformity to warranty, including, but not limited to, issues with the airbag, SRS, cam solenoid, and other defects. May alleges she took the vehicle to an authorized service and repair facility numerous times, but they were unable to repair the issues. The operative First Amended Complaint states three causes of action for: 1) Song-Beverly Consumer Warranty Act; 2) fraud; and 3) negligent misrepresentation.
On June 16, 2017, MBUSA filed a cross-complaint for fraud, equitable indemnity, contribution and implied indemnity against Takata Corporation and TK Holdings, Inc. On June 20, 2017, Takata filed chapter 11 bankruptcy and a stay subsequently issued. On September 22, 2017, MBUSA removed this case. On September 17, 2018, the court lifted the stay. The Court received a notice of remand on December 19, 2019.
This case is related to BC687978, where May brings a substantially similar complaint against the dealership that sold/repaired the vehicle.
On May 26, 2020, Plaintiff filed a renewed motion for consolidation. No opposition was submitted.
The trial court is authorized to consolidate pending “actions involving a common question of law or fact…,” so as to “avoid unnecessary costs or delay.” (CCP § 1048(a).) The decision to consolidate pending actions is a matter wholly committed to the trial court’s discretion. (Nat’l Elec. Supply Co. v. Mt. Diablo Unified Sch. Dist. (1960) 187 Cal. App. 2d 418, 421.) LASC Local Rule 3.3(g)(1) further directs that consolidation cannot occur until “[a] motion to consolidate two or more cases [is] noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.”
Under California Rules of Court Rule 3.350(a)(1), a notice of motion to consolidate must: (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be consolidated. (2) The motion to consolidate: (A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case; (B) Must be served on all attorneys of record and all non-represented parties in all of the cases sought to be consolidated; and (C) Must have a proof of service filed as part of the motion. Under Cal. Rules of Court, Rule 3.350(b), “[u]nless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case in the lead case.”
The Court finds that Plaintiff meets the procedural requirements for consolidation. Further, there are overlapping issues of law and fact. Both cases regard the same set of facts with similar causes of action.
Accordingly, Plaintiff’s motion to consolidate is GRANTED. BC634465 is designated the lead case.
Moving party is ordered to give notice.
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