This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 15:35:26 (UTC).

DAVID KIM VS NAOS YACHTS INC ET AL

Case Summary

On 10/23/2017 DAVID KIM filed a Contract - Other Contract lawsuit against NAOS YACHTS INC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judges overseeing this case are ROSS KLEIN and MARK C. KIM. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1439

  • Filing Date:

    10/23/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ROSS KLEIN

MARK C. KIM

 

Party Details

Plaintiffs

DAVID KIM - INDIV.

INDIV. DAVID KIM -

Defendants

CHARLES DEVANNEAUX- INDIV.

DOES 1- 50 INC

CONSTRUCTION NAVALE BORDEAUX S.A. + DDBA

BENETEAU S.A. DBA GROUPE BENETEAU - ENT

LAGOON CATAMARANS - ENTITY UNK FORM

PHILLIP WINTER - NDIV.

VOLVO PENTA OF THE AMERICAS LLC - DEL LLC

NAOS YACHTS INC. - CA CORP

CNB YACHTS BUILDERS - ENTITY UNK FORM

INDIV. CHARLES DEVANNEAUX-

NDIV. PHILLIP WINTER -

Attorney/Law Firm Details

Plaintiff Attorneys

ROBERT MYONG LAW OFFICE OF

MYONG ROBERT S

Defendant Attorneys

LAW OFFICE OF ALEXANDER T. GRUFT

LAW OFFICES OF ALEXANDER T GRUFT

LEWIS BRISBOIS BISGAARD & SMITH LLP

PORT ANDREW IRA

JULIAN JOCELYN ANN

GRUFT ALEXANDER T

 

Court Documents

Summons

10/23/2017: Summons

Complaint

10/23/2017: Complaint

Civil Case Cover Sheet

10/23/2017: Civil Case Cover Sheet

Other -

10/23/2017: Other -

Unknown

10/23/2017: Unknown

Notice of Case Management Conference

10/23/2017: Notice of Case Management Conference

Unknown

11/9/2017: Unknown

Unknown

12/8/2017: Unknown

Unknown

12/8/2017: Unknown

Unknown

12/8/2017: Unknown

Unknown

12/8/2017: Unknown

Answer

12/21/2017: Answer

Unknown

12/22/2017: Unknown

Unknown

12/22/2017: Unknown

Unknown

12/22/2017: Unknown

Minute Order

1/8/2018: Minute Order

Unknown

1/8/2018: Unknown

Unknown

1/16/2018: Unknown

123 More Documents Available

 

Docket Entries

  • 06/12/2019
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Case Management Conference - Held - Continued

    [+] Read More [-] Read Less
  • 06/12/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

    [+] Read More [-] Read Less
  • 06/07/2019
  • DocketOrder (Discovery Referee's Recommendation Regarding Construction Navale Bordeaux, S.A.'s Motions to Compel Further Discovery Responses to Set One Discovery and Proposed Order); Filed by DAVID KIM - INDIV. (Plaintiff)

    [+] Read More [-] Read Less
  • 06/07/2019
  • DocketCase Management Statement; Filed by NAOS YACHTS INC. - CA CORP (Defendant)

    [+] Read More [-] Read Less
  • 06/05/2019
  • DocketCase Management Statement; Filed by VOLVO PENTA OF THE AMERICAS LLC - DEL LLC (Defendant)

    [+] Read More [-] Read Less
  • 05/28/2019
  • DocketCase Management Statement; Filed by CONSTRUCTION NAVALE BORDEAUX, S.A. + DDBA (Defendant); BENETEAU S.A. DBA GROUPE BENETEAU - ENT (Defendant)

    [+] Read More [-] Read Less
  • 05/06/2019
  • DocketNotice (Notice of Referee's Designation of Consent and Certification of Referee; and of Appointment of Discovery Referee); Filed by CONSTRUCTION NAVALE BORDEAUX, S.A. + DDBA (Defendant); BENETEAU S.A. DBA GROUPE BENETEAU - ENT (Defendant)

    [+] Read More [-] Read Less
  • 05/06/2019
  • DocketNotice (Notice of Referee's Designation of Consent and Certification of Referee; and of Appointment of Discovery Referee); Filed by CONSTRUCTION NAVALE BORDEAUX, S.A. + DDBA (Defendant); BENETEAU S.A. DBA GROUPE BENETEAU - ENT (Defendant)

    [+] Read More [-] Read Less
  • 04/18/2019
  • DocketNotice (Notice of Entry of Order Re: Appointment of Discovery Referee); Filed by CONSTRUCTION NAVALE BORDEAUX, S.A. + DDBA (Defendant); BENETEAU S.A. DBA GROUPE BENETEAU - ENT (Defendant)

    [+] Read More [-] Read Less
  • 04/17/2019
  • DocketOrder (Proposed Order Re: Appointment of Discovery Referee); Filed by CONSTRUCTION NAVALE BORDEAUX, S.A. + DDBA (Defendant); BENETEAU S.A. DBA GROUPE BENETEAU - ENT (Defendant)

    [+] Read More [-] Read Less
154 More Docket Entries
  • 12/08/2017
  • DocketRtn of Service of Summons & Compl; Filed by DAVID KIM - INDIV. (Plaintiff)

    [+] Read More [-] Read Less
  • 12/08/2017
  • DocketRtn of Service of Summons & Compl; Filed by DAVID KIM - INDIV. (Plaintiff)

    [+] Read More [-] Read Less
  • 12/08/2017
  • DocketRtn of Service of Summons & Compl; Filed by DAVID KIM - INDIV. (Plaintiff)

    [+] Read More [-] Read Less
  • 11/09/2017
  • DocketStipulation and Order; Filed by NAOS YACHTS INC. - CA CORP (Defendant); CHARLES DEVANNEAUX- INDIV. (Defendant); PHILLIP WINTER - NDIV. (Defendant)

    [+] Read More [-] Read Less
  • 10/23/2017
  • DocketCivil Case Cover Sheet

    [+] Read More [-] Read Less
  • 10/23/2017
  • DocketComplaint; Filed by DAVID KIM - INDIV. (Plaintiff)

    [+] Read More [-] Read Less
  • 10/23/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

    [+] Read More [-] Read Less
  • 10/23/2017
  • DocketOther - (Order to Show cause Hearing)

    [+] Read More [-] Read Less
  • 10/23/2017
  • DocketNotice of Case Management Conference

    [+] Read More [-] Read Less
  • 10/23/2017
  • DocketSummons; Filed by Plaintiff

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****1439 Hearing Date: April 26, 2022 Dept: S27

Plaintiffs seek a protective order limiting the number of experts Defendant can call and the scope of their testimony. Defendant, during expert designation, listed six witnesses; it subsequently agreed to withdraw one of them, leaving five remaining. Plaintiffs seek a protective order, contending (a) the experts will present cumulative testimony, (b) the subject matter upon which the experts can testify should be limited, and (c) the financials and present value of the boat should be excluded under Evidence Code 352. Defendant opposes the motion. It argues (a) the motion is premature, as expert depositions have not yet been conducted, (b) the expert testimony is all relevant to the issues presented, and (c) the expert testimony is not cumulative in nature.

The first issue is whether the proposed expert testimony is cumulative. The parties agree that, pursuant to South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 906, the Court can exclude expert testimony if it will be cumulative. Defendant, in opposition to the motion, explains that each of the five experts will testify concerning different issues. The Court is not inclined to grant a protective order on this ground; in the event the testimony becomes cumulative at trial, the Court will exclude it at that time.

The second issue is whether the Court can grant a protective order to preclude expert testimony because the issue on which the expert will testify is legally settled. Plaintiffs argue that the issue of whether the boat is a consumer product is a settled one, so Defendant cannot have an expert testify to the contrary. Plaintiffs cite no authority for the position that an expert can be excluded on this ground. Plaintiffs have not brought any sort of dispositive motion on this ground, and the Court has not made a legal ruling on this issue. Absent authority permitting the Court to exclude experts because the legal issue is “settled,” the motion for a protective order is denied.

Plaintiffs’ final request is that the Court exclude financials and present value of the boat under Evidence Code 352. First, this is not a motion in limine; this is a motion for a protective order concerning expert testimony. Plaintiffs’ notice of motion says nothing about excluding an entire body of evidence; it says only that “this motion is made on the grounds that the subject matter on which the experts are designated to testify is duplicative and outside the scope of issues to be tried in this case.” To the extent this is a motion in limine, rather than a motion for a protective order concerning experts, it is denied as improperly noticed. Second, Defendant correctly notes that a Magnuson-Moss claim can give rise to “incidental and consequential” damages per Commercial Code 2714; unless Plaintiffs are waiving a claim for any such damages, Defendant must prepare a defense to those damages. The motion is therefore denied on this ground as well.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.



Case Number: ****1439 Hearing Date: March 10, 2022 Dept: S27

  1. Background Facts

Plaintiff, David Kim filed this action against Defendants, Naos Yachts, Inc., Charles Devanneaux, Phillip Winter, Lagoon Catamarans, Construction Navale Bordeaux, S.A., Beneteau, S.A., and Volvo Penta of the Americas, LLC. The gravamen of Plaintiff’s complaint is that Co-Defendants Naos Yachts and individual defendants (the “broker defendants”) sold him a defective yacht. The Yacht was manufactured by Navale and Beneteau. Volvo manufactures engines for yachts and other parts. The problems with the vessel included “a non-working PCU, which controlled all of the electronics on the yacht,” as well as problems with the electrical and navigational systems.

On 11/19/20, the Court granted Plaintiff’s motion for leave to file a Third Amended Complaint. The TAC made various minor changes, and also added a claim for violation of the Magnuson-Moss Consumer Warranty Act. On 4/08/21, the Court granted, in part, Plaintiff’s motion for leave to file a Fourth Amended Complaint. The Court permitted Plaintiff to add Boundless Horizons, LLC as an additional plaintiff in the action, but included the following language in its ruling:

Plaintiff’s proposed Fourth Amended Complaint alleges David Kim is an individual who resides in Orange County, Ca. It goes on to allege Boundless Horizons is a California limited liability corporation. It also alleges Kim is the “principal shareholder” of Boundless Horizons. The Court, in its tentative ruling, expressed the opinion that being a “principal shareholder” of an entity is not the same as being the sole owner of a professional corporation. Specifically, the Court opined:

The distinction carved out in Pasadena Hospital Ass’n was created because the Court found a plaintiff and his wholly-owned professional corporation are essentially one and the same. This is not true, however, of a “principal shareholder” and a Limited Liability Corporation. They are not one and the same. The Court therefore finds the claims of Bountiful Horizons are bound by the ordinary rules governing relation back, which are that claims of one plaintiff do not “relate back” to claims asserted by another plaintiff.

Plaintiff, at oral argument, asserted that he is the sole shareholder of Bountiful Horizons, and he and Bountiful Horizons are functionally the same in the same manner that a doctor and his professional corporation are functionally the same. To the extent this is the case, the Court will grant leave to amend. Plaintiff must, however, ensure his amended complaint includes allegations to this effect, rather than the allegations found in the proposed amended complaint lodged with the motion.

The operative 4AC included causes of action for breach of contract, negligence, breach of express warranty, breach of implied warranty of merchantability, violation of BPC 17200, violation of Magnuson-Moss Consumer Warranty Act, and violation of Song-Beverly Consumer Warranty Act. On 10/26/21, the Court overruled Construction Navale and Beneteau’s demurrer to the 4AC. The Court sustained Defendant, Naos’s demurrer to the second, fifth, and sixth causes of action without leave to amend, and otherwise overruled its demurrer.

  1. Motion for Reconsideration
  1. Parties’ Positions

    Plaintiffs move for reconsideration of the order sustaining Naos’s demurrer to the second and sixth causes of action without leave to amend; specifically, Plaintiffs seek an order permitting them to file a Fifth Amended Complaint including additional allegations supporting the second and sixth causes of action.

    Defendant, Naos opposes the motion. It argues Plaintiffs should have provided any evidence in support of their request for relief in connection with the demurrer, and there are no new or different facts presented with the moving papers.

    Defendant, CNB also opposes the motion. It concedes the relevant ruling does not pertain directly to it, but it contends Plaintiffs should not be permitted to file a Fifth Amended Complaint. It contends Plaintiffs have provided no new or different facts to support their request for relief. Defendant also contends the proposed 5AC contains additional amendments and seeks to re-add dismissed parties, which is improper. Finally, CNB contends the proposed claims in the 5AC fail to state a cause of action.

  2. Law Governing Reconsideration

    Under the following conditions, the losing party may make a motion before the same judge to reconsider and enter a different order pursuant to CCP 1008(a). Such motion must be:

    • brought before the same judge who made the order;

    • “made within 10 days after service upon the party of notice of entry of the order”;

    • based on “new or different facts, circumstances or law” than those before the court at the time of the original ruling;

    • supported by declaration stating the previous order, by which judge it was made, and the new or different facts, circumstances or law claimed to exist; and

    • made and decided before entry of judgment.

    The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. The burden under 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.

    A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration is properly denied where based on evidence that could have been presented in connection with the original motion. Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.

    Ruling on a motion for reconsideration is a two-step process. The Court must first determine if there are new or different facts, circumstances, of law that support reconsidering the prior decision. Once the Court finds such facts, circumstances, or law exist, the Court then revisits the prior decision and decides whether or not to change the decision. Corns v. Miller (1986) 181 Cal.App.3d 195, 202.

  3. New or Different Facts, Circumstances, or Law

    The Court finds Plaintiffs have failed to present new or different facts, circumstances, or law as defined above. Plaintiffs failed to show that there are any new or different facts, circumstances, or law that could not have been, with reasonable diligence, presented in connection with the original ruling on the demurrer. The motion for reconsideration is therefore denied.

  1. Defendant, CNB’s Motion for Summary Judgment/Adjudication
  1. Parties’ Positions

CNB moves for summary judgment or, in the alternative, summary adjudication of each cause of action asserted against it in the 5AC. CNB contends (a) Kim lacks standing to bring any claims because he did not own or have title to the yacht at any relevant time; (b) Kim’s warranty claims fail because the yacht was not purchased in California; (c) the Song-Beverly and Magnuson Moss claims fail because the yacht was purchased and used primarily for business purposes, (d) the terms of the warranty limit claims to the first purchaser only.

Plaintiffs oppose the motion. They contend each of them is entitled to relief under the Magnuson-Moss Act because the vessel was purchased and used primarily for personal purposes, and a product purchased by a business is still a consumer product. They contend they are co-buyers of the yacht. They contend they can pursue a Magnuson-Moss Act claim regardless of whether the boat was delivered in Florida. They contend their Song-Beverly Act claim is viable because the warranty provides for choice of law in the domicile of the buyer. They contend Kim is a buyer under the Act.

  1. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. 437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at 437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at 437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at 437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  1. Evidentiary Objections

CNB submitted objections with its reply papers. The objection to Exhibit 3 is sustained. The remaining objections to exhibits are overruled. The objection to the Declaration of Brennan is overruled.

Most of the objections to the Declaration of Kim are made on the ground that Kim’s declaration contradicts his prior deposition testimony. The testimony cited, however, tends to be of the “I don’t remember” variety. There is nothing contradictory about failing to remember something in deposition, then obtaining the information and putting it in a declaration. Additionally, some of the deposition transcript cited as contradictory in the objections is not included; see, for example, page 79 of the deposition, cited in connection with CNB’s objection to 3 of Kim’s declaration. The objections are overruled.

CNB’s objection to 3 of the Geraci declaration is sustained; the remaining objections are overruled.

CNB’s objections to the Gorman declaration are overruled.

  1. Standing

CNB’s first argument is that Kim, as an individual, lacks standing to bring his remaining claims against CNB because he never owned the yacht at issue. CNB argues the FCR requires water vessels to have clear, documented chain of title. CNB argues title of the yacht passed from CNB to Naos to Boundless Horizons, a Delaware LLC owned by Clear Sailing. CNB, as evidence of its position, provides the original title transfer documentation, the Bill of Sale, the Abstract of Title, the Certificates of Documentation, all Coast Guard documentation, the California Resale Certificate, and tax returns showing Boundless Horizons took annual depreciation deductions.

Plaintiff, in opposition to the motion, presents Exhibit 1 to the Declaration of Counsel, Brennan. Exhibit 1 is a “purchase contract” that lists “David Kim” as the buyer and NAOS Yachts as the seller. It is dated 3/05/18. Exhibit 2 is a wire application and series of related documents showing Boundless Horizons, LLC as the originator of the transfer and NAOS as the recipient.

CNB, in reply, argues Plaintiffs are suggesting they were “co-buyers” of the yacht for the first time, as their operative 4AC alleges Kim bought the yacht and then transferred it to Boundless Horizons.

The Court has reviewed Plaintiffs’ 4AC, filed on 4/16/21. At page 2, lines 1-3, Plaintiffs allege Kim originally bought the vessel, which was then transferred to Boundless Horizons. Plaintiffs repeat this allegation throughout their 4AC. The term “co-buyers” never appears in the 4AC. Thus, to the extent Plaintiffs are claiming to have been co-buyers, the Court will not consider these contentions.

The Court is inclined to find Plaintiffs have pled, and also raised a triable issue of material fact, concerning Kim’s purchase of the vessel (making him the original buyer), and subsequent transfer of the vessel to Boundless Horizons. CNB attempts to prove this is incorrect by citing the fact that Boundless Horizons was the “buyer” on the Bill of Sale, dated 6/29/16. It appears the documents are in conflict. It is not clear why Kim is listed as the “buyer” on the Purchase Contract and Addendums thereto, but it is clear that he is. CNB therefore failed to show, as a matter of law, that Kim was never the “buyer” of the subject yacht.

  1. Transfer in Florida

CNB next argues the warranty claims (breach of express warranty, breach of implied warranty, and Song-Beverly Act) causes of action all fail because the yacht was “sold” outside of California. CNB contends delivery occurred and title passed in either France of Florida, either of which defeats Plaintiffs’ warranty-based claims. CNB cites several cases, including Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 483, to support its position that these warranty claims fail if the sale does not occur in California.

Plaintiffs, in opposition to the motion, make a confusing choice of law argument. They argue that the parties’ contract provides that the law of the purchaser’s home state is controlling, and therefore the CA-based warranty claims can be asserted, regardless of where the sale took place. The Court is applying CA law, which CNB cited in its moving papers. CA law, however, does not permit warranty claims when a sale occurs outside of the state of CA. Plaintiffs did not dispute the fact that the sale happened in France and/or Florida, and then Plaintiffs hired a third party to sail the yacht from Florida to California. Thus, under CA law, the warranty-based claims fail. The motion for summary adjudication of these claims is therefore granted.

  1. Yacht Used for Business Purposes

CNB argues the Song-Beverly and Magnuson Moss claims fail because the yacht was used for business purposes. Plaintiffs argue (a) the type of the vehicle, not its actual use, is controlling, and (b) there is a triable issue of material fact concerning whether the yacht, when defects first appeared, was being used for business purposes.

Plaintiffs cite numerous cases holding that a product that is of the type normally used for personal purposes is subject to a Magnuson Moss claim, even if the product is actually used for business purposes. Plaintiffs provide the expert declaration of Gorman, who opines that the type of yacht purchased by Plaintiffs is a pleasure vessel. Plaintiffs cite authority, specifically Baldwin v. Jarrett Bay Yacht Sales, LLC (E.D.N.C. 2009) 683 F.Supp.2d 1022, 1031 to support their position that pleasure yachts are subject to Magnuson Moss claims. CNB does not meaningfully dispute any of this authority in its reply papers, and makes only cursory mention of the argument. The motion for summary adjudication of the Song-Beverly and Magnuson Moss claims on this ground is therefore denied.

  1. Warranty Only Applies to First Purchaser Under Magnuson Moss

CNB argues Magnuson Moss claims only apply to the first purchaser. It argues Plaintiffs admit Kim was the first buyer, and therefore contends the claims, to the extent they are being asserted by Boundless Horizons, must be summarily adjudicated.

15 U.S.C. 2301(3) defines consumer for purposes of the Act. It states, “The term “consumer” means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).”

CNB argues there are no implied warranties under Magnuson Moss, and argues the express warranty is limited to the first purchaser user. CNB included a copy of the warranty as Exhibit W to its moving papers. It argues 9(c)(vii) limits the warranty to the first purchaser. 9(c)(vii) provides, in pertinent part, “THE IMPLIED WARRANTIES…ARE HEREBY LIMITED TO THE BENEFIT OF THE FIRST PURCHASER-USER AND TO THE APPLICABLE WARRANTY PERIODS SET FORTH HEREIN.”

The Court finds there are triable issues of material fact in this regard. First, it is not clear if transferring, as opposed to selling, the property to an individually owned LLC would render the LLC not the “first purchaser-user” of the yacht. Second, Plaintiffs provide evidence that Boundless Horizons submitted warranty claims to CNB, and CNB responded to the claims.

CNB failed to show any transfer between Kim and Boundless Horizons was a “resale,” and also failed to show the transfer did not occur during the duration of the implied or written warranty. At most, CNB showed Kim “transferred” the yacht to Boundless Horizons, but the definition clearly includes “any person to whom such product is transferred” during the duration of the warranty. The motion for summary adjudication of Boundless Horizons’ Magnuson Moss claim on this ground is therefore denied.

  1. Kim’s Warranty Claims

CNB argues all warranty claims were submitted during Boundless Horizons’ ownership period, and therefore Kim’s warranty claims should be dismissed. However, again Plaintiffs provide evidence that each of them submitted warranty claims, and CNB responded to each of their claims. The motion for summary adjudication on this ground is therefore denied.

  1. Conclusion

CNB’s motion for summary adjudication of Plaintiffs’ breach of express warranty, breach of implied warranty, and Song-Beverly causes of action is granted. CNB’s motion for summary judgment/adjudication is otherwise denied.

  1. Defendant, Naos’s Motion for Summary Judgment/Adjudication
  1. Parties’ Positions

    Naos moves for summary judgment or, in the alternative, summary adjudication. Naos contends Kim cannot prevail on the breach of contract cause of action because there is no evidence of breach. It contends Kim cannot prevail on negligence because Naos had no duties to Kim apart from its contractual duties, which were not breached. Naos contends Kim lacks standing to bring his remaining claims. Naos contends the warranty claims fail because the yacht was not purchased in CA. Naos contends the Song-Beverly cause of action fails because title passed outside of CA. Naos contends the Magnuson Moss and Song-Beverly claims fail because the yacht was used primarily for business purposes. Naos contends the 17200 cause of action is merely derivative and fails because all of the other causes of action fail. Finally, Naos contends Boundless Horizon’s Magnusson-Moss claim fails because Boundless Horizons lacks privity with Naos.

    Plaintiffs oppose the motion. They contend each of them are entitled to pursue a claim under Magnuson-Moss, as the product was a consumer product. They contend they are each consumers under the Magnuson-Moss definition. They contend the Act required Naos to deliver merchantable goods, which it failed to do, and they contend it does not matter if the boat was delivered in Florida. They contend Song-Beverly covers the vessel due to its choice of law clause. They contend there are triable issues of material fact re: breach of contract, negligence, and 17200.

  2. Evidentiary Objections

    Naos submitted objections with its reply papers. The objections to the Declaration of Kim are overruled. The first objection to the Declaration of Geraci is sustained; the remaining objections are overruled. The objections to the Declaration of Gorman are overruled.

  3. Second Cause of Action, Breach of Contract

    Naos’s first argument is that Plaintiff, Kim cannot prevail on his breach of contract claim. In Kim’s 4AC, Kim alleges Naos had a written agreement to deliver the subject yacht to Plaintiff in good and working condition, but breached that obligation due to numerous deficiencies in the yacht. Plaintiff alleges this was a breach of the express warranty in the parties’ contract. Plaintiff also alleges Naos promised to lock the exchange rate on the purchase price of the yacht, but failed to do so and instead sold Plaintiff a “call option.” Plaintiff alleges Naos promised to provide a $20,000 discount at closing due to under-estimating the shipping costs for the yacht, but refused to honor the promise. Plaintiff alleges Naos promised to pay Plaintiff for repairs to the yacht, but has failed to honor that promise.

    Naos argues Plaintiff cannot prevail on the claim that it breached the contract by failing to deliver the yacht in good working condition because Plaintiff sailed the yacht in southern Florida, then in the Bahamas, and ultimately had it delivered to California. Naos argues Plaintiff could not have done this, as well as engage in charter activities, if the yacht was not in good and working condition.

    Naos failed to negate the allegations of the 4AC. The 4AC, at 37, alleges defects in the navigation and electrical systems. Naos failed to provide evidence that Plaintiff could not have operated the vehicle as he did in light of such defects. Naos therefore failed to carry its burden to show it did not breach the parties’ contract. The Court declines to consider the remaining allegations re: breach, as doing so is not necessary to a resolution of the motion for summary adjudication of the cause of action, which is denied.

  4. Third Cause of Action, Negligence

    Plaintiff alleges, at 49 of his 4AC, that Naos owed Plaintiff a duty of care in carrying out the repairs to the yacht. Naos argues Kim’s negligence claim fails because (a) Naos owed Plaintiff no duty to carry out repairs on the yacht (CNB had that duty), and (b) Naos’s claim for negligence is duplicative of his contract claim. Naos supports its argument that it owes no duty to conduct repairs with facts 1-3 in its separate statement, which establish Naos has a distribution agreement with CNB to market and sell yachts, Naos is a separate business entity from CNB, and Naos is not a repair facility. Naos met its burden to show it did not have a legal duty (apart from its contractual duty) to Plaintiff to carry out repairs.

    Plaintiff, in opposition to the motion, argues Naos is liable because it is CNB’s agent for repairs. Plaintiff fails to meaningfully provide evidence of how this agency relationship was created, or to provide on point legal analysis concerning an agency relationship. Plaintiff therefore failed to raise a triable issue of material fact. The motion for summary adjudication of the negligence cause of action is granted.

  5. Standing

    Naos next argues Kim lacks standing to bring his remaining claims against Naos. The motion on this ground is denied for the reasons detailed above in connection with CNB’s motion.

  6. Transaction Outside of CA

    The motion for summary adjudication of the express warranty, implied warranty, and Song-Beverly claims is granted for the reasons detailed above in connection with CNB’s motion.

  7. Business Purposes

    Naos’s motion for summary adjudication of the Song-Beverly and Magnuson Moss claims on the ground that the yacht was purchased for commercial purposes is denied for the reasons detailed above in connection with CNB’s motion.

  8. Sixth Cause of Action, Violation of BPC 17200

    Naos contends the BPC 17200 cause of action fails because the second, third, and fifth causes of action all fail. The motion for summary adjudication of the second cause of action is denied, and therefore the motion for summary adjudication of the 17200 cause of action is also denied.

  9. Conclusion

    Naos’s motion for summary judgment is denied. Naos’s alternative motion for summary adjudication of the 3rd, 4th, 5th, and 8th (negligence, breach of implied warranty, breach of express warranty, and Song-Beverly) causes of action is granted; the motion is otherwise denied.

    Defendant, Naos is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.



Case Number: ****1439 Hearing Date: January 27, 2022 Dept: S27

  1. Background Facts

Plaintiff, David Kim filed this action against Defendants, Naos Yachts, Inc., Charles Devanneaux, Phillip Winter, Lagoon Catamarans, Construction Navale Bordeaux, S.A., Beneteau, S.A., and Volvo Penta of the Americas, LLC. The gravamen of Plaintiff’s complaint is that Co-Defendants Naos Yachts and individual defendants (the “broker defendants”) sold him a defective yacht. The Yacht was manufactured by Navale and Beneteau. Volvo manufactures engines for yachts and other parts. The problems with the vessel included “a non-working PCU, which controlled all of the electronics on the yacht,” as well as problems with the electrical and navigational systems.

On 11/19/20, the Court granted Plaintiff’s motion for leave to file a Third Amended Complaint. The TAC made various minor changes, and also added a claim for violation of the Magnuson-Moss Consumer Warranty Act. On 4/08/21, the Court granted, in part, Plaintiff’s motion for leave to file a Fourth Amended Complaint. The Court permitted Plaintiff to add Boundless Horizons, LLC as an additional plaintiff in the action, but included the following language in its ruling:

Plaintiff’s proposed Fourth Amended Complaint alleges David Kim is an individual who resides in Orange County, Ca. It goes on to allege Boundless Horizons is a California limited liability corporation. It also alleges Kim is the “principal shareholder” of Boundless Horizons. The Court, in its tentative ruling, expressed the opinion that being a “principal shareholder” of an entity is not the same as being the sole owner of a professional corporation. Specifically, the Court opined:

The distinction carved out in Pasadena Hospital Ass’n was created because the Court found a plaintiff and his wholly-owned professional corporation are essentially one and the same. This is not true, however, of a “principal shareholder” and a Limited Liability Corporation. They are not one and the same. The Court therefore finds the claims of Bountiful Horizons are bound by the ordinary rules governing relation back, which are that claims of one plaintiff do not “relate back” to claims asserted by another plaintiff.

Plaintiff, at oral argument, asserted that he is the sole shareholder of Bountiful Horizons, and he and Bountiful Horizons are functionally the same in the same manner that a doctor and his professional corporation are functionally the same. To the extent this is the case, the Court will grant leave to amend. Plaintiff must, however, ensure his amended complaint includes allegations to this effect, rather than the allegations found in the proposed amended complaint lodged with the motion.

On 10/26/21, the Court heard a demurrer to the 4AC. The 4AC included causes of action for breach of contract, negligence, breach of express warranty, breach of implied warranty of merchantability, violation of BPC 17200, violation of Magnuson-Moss Consumer Warranty Act, and violation of Song-Beverly Consumer Warranty Act. The Court sustained a demurrer to the 4AC in part and overruled it in part. On 11/02/21, Plaintiffs filed their operative 5AC. The 5AC includes the same causes of action that were detailed in the 4AC, with the exception of the negligence cause of action; Plaintiffs omit the negligence cause of action from the 5AC.

  1. Motion for Summary Judgment/Adjudication (Construction Navale Bordeaux, S.A.)

CNB filed its motion for summary judgment/adjudication on 11/10/21. CNB’s notice of motion indicates CNB is challenging Plaintiffs’ 4AC. CNB seeks summary judgment on the 4AC or, alternatively, summary adjudication of each cause of action in the 4AC. Plaintiffs, however, filed their operative 5AC on 11/02/21, eight days before CNB filed its motion for summary judgment/adjudication. Because the motion is directed at an inoperative complaint, it is denied.

  1. Motion for Summary Judgment (by Defendant, NAOS Yachts, Inc.)

Naos’s motion suffers from the same fate as CNB’s motion. Naos’s notice of motion also references the 4AC, not the operative 5AC, even though the motion was filed on 11/12/21, ten days after Plaintiffs filed their 5AC.

Naos’s motion suffers from an additional defect: Naos failed to comply with CRC 3.1350(b) and (d), which require the separate statement to repeat the issues to be adjudicated verbatim from the notice of motion, and require the separate statement to separately identify each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. Naos’s separate statement merely lists 46 purportedly undisputed facts in support of its summary judgment motion, and fails to separate out facts relating to each of the fifteen issues it seeks to have adjudicated.

  1. Plaintiffs’ Papers

Plaintiffs’ post-demurrer filings have compounded the confusion in this case. As noted above, on 10/26/21, the Court heard Naos’s demurrer to the 4AC. The Court sustained the demurrer to Boundless Horizon’s breach of contract, negligence, and 17200 causes of action without leave to amend. For reasons that are not clear, Boundless Horizons reasserted its breach of contract and 17200 causes of action in its 5AC. This was patently improper.

Additionally, at page 20, Section D of their opposition brief, Plaintiffs contend Naos is liable for negligence. Plaintiffs’ operative 5AC, however, does not even purport to include a cause of action for negligence.

  1. Final Note

The Court notes that the parties have three upcoming discovery motions scheduled for hearing. The Court notes that one of the motions, as well as a motion for reconsideration re: the demurrer to the 4AC, is scheduled for hearing AFTER the trial date. The parties are advised that, if they are unable to resolve their outstanding issues, the Court will likely appoint a discovery referee to oversee the ongoing disputes.

  1. Conclusion

Defendants’ summary judgment/summary adjudication motions are denied for the procedural reasons detailed above. The Court advises the parties to swiftly resolve their discovery issues if they wish to avoid appointment of a referee.



Case Number: ****1439    Hearing Date: April 8, 2021    Dept: S27

  1. Background Facts

Plaintiff, David Kim filed this action against Defendants, Naos Yachts, Inc., Charles Devanneaux, Phillip Winter, Lagoon Catamarans, Construction Navale Bordeaux, S.A., Beneteau, S.A., and Volvo Penta of the Americas, LLC. The gravamen of Plaintiff’s complaint is that Co-Defendants Naos Yachts and individual defendants (the “broker defendants”) sold him a defective yacht. The Yacht was manufactured by Navale and Beneteau. Volvo manufactures engines for yachts and other parts. The problems with the vessel included “a non-working PCU, which controlled all of the electronics on the yacht,” as well as problems with the electrical and navigational systems.

On 11/19/20, the Court granted Plaintiff’s motion for leave to file a Third Amended Complaint. The TAC made various minor changes, and also added a claim for violation of the Magnuson-Moss Consumer Warranty Act. The operative TAC includes causes of action for breach of contract, negligence, breach of express warranty, breach of implied warranty of merchantability, violation of BPC ;17200, violation of Magnuson-Moss Consumer Warranty Act, and violation of Song-Beverly Consumer Warranty Act.

  1. Motion for Leave to Amend
  1. Relief Sought

    Plaintiff seeks leave to file a Fourth Amended Complaint. He seeks leave to add Boundless Horizons, LLC as an additional plaintiff in the action. He contends the relief is necessary because, shortly after he took possession of the boat, he transferred his interest in the boat to Boundless Horizons.

  2. Defendants’ Position

    Defendants oppose and/or join opposition to the motion. Defendants contend Plaintiff delayed in seeking relief, and the delay prejudiced them. They also contend several of the proposed causes of action by Bountiful Horizons fail to state a cause of action and could not be amended to cure the defects, such that leave to amend is not appropriate.

  3. Legal Standard on Motion for Leave to Amend

    The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP ;;473 and 576.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

    The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

  4. Delay and Prejudice

    Plaintiff clearly delayed seeking leave to amend the complaint. Plaintiff contends he transferred the title of the vessel that forms the basis of this action to Boundless Horizons shortly after he purchased the ship. This action has been pending since October of 2017, and the transfer occurred prior to the filing of the action in 2016.

    As noted above, however, delay alone does not justify denial of a motion for leave to amend. The delay must be coupled with prejudice. Defendants contend they will be prejudiced because they will have to conduct discovery and prepare a defense of the new claims. Defendants rely on Magpali, supra, which lists “increased burden of discovery” as one of the types of prejudice that justifies denial of leave to amend. The mere fact that discovery will need to be conducted to defend against new claims, however, is not “prejudice.” Prejudice exists when discovery will become duplicative or redundant, and therefore additionally costly, because of the amendment. Defendants fail to show that any discovery they conducted previously becomes moot if leave to amend is granted, or that they will have to conduct discovery that will be costly due to the late amendment, as opposed to being due to the newly asserted claims themselves. In other words, if Bountiful Horizons had been a plaintiff from the outset of the litigation, Defendants would have needed to conduct all of the discovery they complain of in their opposition to the motion; this is, however, not “prejudice” that justifies denial of the motion.

    Defendants also argue Plaintiff has been engaged in gamesmanship relating to the ownership of the vessel. It does appear the parties have been involved in prolonged discovery battles in this regard, and Plaintiff did not originally produce all documentation or answer questions relating to the ownership of the vessel (among other discovery problems). The parties used a referee to resolve these issues, and Plaintiff was ultimately ordered to produce all of the subject documentation. Plaintiff’s attorney failed, in the moving papers, to address why Bountiful Horizons was not added to the litigation until this late date. He explains, in his reply declaration, that he only recently realized Bountiful Horizons owned the vessel and needed to be named. He notes that he substituted into the action late in 2020, and the case was embroiled in various discovery and pleading disputes at the time of his substitution. The Court finds his declaration credible. It is, therefore, not clear that Plaintiff has been engaged in gamesmanship, and it appears equally likely that he simply had an attorney who failed to diligently prosecute his case. Plaintiff should not be punished with the draconian remedy of refusing leave to amend because his former attorney failed to protect his interests.

  5. Failure to State a Cause of Action

    Defendants also argue leave to amend should be denied because Plaintiff’s proposed amended complaint fails to state a cause of action as to some of the claims asserted.

  1. Song-Beverly

    Defendants argue the cause of action for violation of the Song-Beverly Act fails because Bountiful Horizons was not a “buyer” of the vessel, as required by the Act. Defendants argue that, because Kim was not a retail seller of the vessel, Defendants cannot be held liable for damages to the vessel once Kim chooses to transfer title to a third party. Defendants contend the vessel is not a consumer good, as Bountiful Horizons clearly purchased it for commercial purposes.

    Plaintiff does not meaningful address the Song-Beverly argument in opposition to the motion. Plaintiff argues some of the issues are factual in nature; the Court tends to agree that the issue of whether or not Bountiful Horizons used the vessel as a consumer good is factual in nature and outside of the four corners of the pleadings. Plaintiff fails, however, to address Defendants’ citation to Dagher v. Ford Motor Company (2015) 238 Cal.App.4th 905, wherein the court held that a purchaser of a used vehicle through a private sale cannot bring an action against the manufacturer for violations of the Act.

    The motion for leave to add Bountiful Horizons as a plaintiff in the cause of action for violation of the Song-Beverly Act is denied.

  2. Magnusson-Moss

    Defendants argue the claim for violation of the Magnusson-Moss Act fails to state a claim because Bountiful Horizons is not a consumer and the ship is not a consumer product. Defendants contend this is true because Kim admitted he signed a form stating he would resell the vehicle. The Court has previously ruled against Defendants in connection with this argument as to Kim’s claims for violation of the Act (see ruling granting motion for leave to file Third Amended Complaint, dated 11/19/20). The argument is even less compelling in connection with Bountiful Horizons’ claims, as the fact that Kim re-sold the ship tells us nothing about how Bountiful Horizons intended to use the vessel. The motion for leave to add this cause of action is therefore granted.

  3. Implied Warranty

    Defendants argue the claims for breach of implied warranty fail because a subsequent purchaser cannot assert a claim for breach of implied warranty. Defendants contend the claims lack vertical privity, which is required per Burr v. Sherwin Williams Co. (1954) 42 Cal.2d 682, 695-696. Plaintiff does not address this argument in reply. The motion for leave to add a claim for breach of the implied warranty of merchantability by Bountiful Horizons is therefore denied.

  4. Warranty Claims

    Defendants’ final contention is that Plaintiff’s “warranty claims” are time-barred. While not specified, it appears Defendants are referring to the causes of action for breach of express warranty and breach of implied warranty. Plaintiff, in reply, contends the warranty claims “relate back” to the filing of the original complaint. Plaintiff relies on Pasadena Hospital Assn., Ltd. v. Superior Court (1988) 204 Cal.App.3d 1031, 1034-1037 to support this position. Pasadena Hospital Ass’n set forth the general rule that a complaint filed by one plaintiff does not “relate back” for purposes of allowing a second plaintiff to state a claim, even if the claim is the same. The Court carved out an exception, however, when the newly-added plaintiff was the wholly owned professional corporation of the original individual plaintiff. The Court held that, under those circumstances, there was no policy or other reason not to allow the original plaintiff to cure a purely technical defect by adding his wholly-owned professional corporation as an additional plaintiff.

    It does not appear that the logic of Pasadena Hospital Ass’n applies in this case. Plaintiff’s proposed Fourth Amended Complaint alleges David Kim is an individual who resides in Orange County, Ca. It goes on to allege Boundless Horizons is a California limited liability corporation. It also alleges Kim is the “principal shareholder” of Boundless Horizons.

    The distinction carved out in Pasadena Hospital Ass’n was created because the Court found a plaintiff and his wholly-owned professional corporation are essentially one and the same. This is not true, however, of a “principal shareholder” and a Limited Liability Corporation. They are not one and the same. The Court therefore finds the claims of Bountiful Horizons are bound by the ordinary rules governing relation back, which are that claims of one plaintiff do not “relate back” to claims asserted by another plaintiff. The motion for leave to add the claims for violation of express and implied warranties by Bountiful Horizons is therefore denied.

  1. Trial Date

    Defendants argue that they will be prejudiced if the motion is granted, because they only have two months to prepare a summary judgment motion and five months to prepare for trial. The Court is not inclined to continue the trial date at this time, but asks the parties to meet and confer to stipulate to continue the trial date if doing so is necessary. The Court will permit one continuance of the trial date, for up to six months, by stipulation, in light of the ruling granting this motion.

  2. Conclusion

    Plaintiff’s motion for leave to file a Fourth Amended Complaint is granted in part and denied in part. Plaintiff is ordered to file a Fourth Amended Complaint, in compliance with the above, within ten days. The Fourth Amended Complaint must be exactly the same as the proposed 4AC attached to the moving papers, except that it must not include claims by Bountiful Horizons for violation of the Song-Beverly Act, breach of express warranty, and/or breach of implied warranty.

    Defendants are ordered to file a responsive pleading within twenty days thereafter.

    Plaintiff is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.



Case Number: ****1439    Hearing Date: January 05, 2021    Dept: S27

Plaintiff’s attorney of record, Dina Adham, seeks to be relieved as counsel, contending trust and confidence with Plaintiff have deteriorated. Counsel filed proof of service of the moving papers on Plaintiff, by personal service. Counsel failed, however, to file proof of service of the moving papers on all other parties who have appeared in the action, as is required by CCP ;1014. The motion is therefore denied.

Counsel is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.



Case Number: ****1439    Hearing Date: November 19, 2020    Dept: S27

  1. Background Facts

Plaintiff, David Kim filed this action against Defendants, Naos Yachts, Inc., Charles Devanneaux, Phillip Winter, Lagoon Catamarans, Construction Navale Bordeaux, S.A., Beneteau, S.A., and Volvo Penta of the Americas, LLC. The gravamen of Plaintiff’s complaint is that Co-Defendants Naos Yachts and individual defendants (the “broker defendants”) sold him a defective yacht. The Yacht was manufactured by Navale and Beneteau. Volvo manufactures engines for yachts and other parts. The problems with the vessel included “a non-working PCU, which controlled all of the electronics on the yacht,” as well as problems with the electrical and navigational systems.

  1. Motion for Leave to Amend
  1. Relief Sought

    Plaintiff seeks leave to file a Third Amended Complaint. The TAC would make a variety of minor changes, none of which are opposed by any opposing defendant. The TAC would also add a cause of action for violation of the Magnuson-Moss Consumer Warranty Act; Defendants oppose this portion of the motion.

  2. Defendants’ Position

    Defendants oppose and/or join opposition to the motion. The crux of the opposition papers, collectively, is that (a) Plaintiff has delayed in filing the motion, and the delay has prejudiced them, and (b) the proposed cause of action for violation of the Magnuson-Moss Act fails to state a cause of action.

  3. Request for Judicial Notice

    Construction Navale Bordeaux and Beneteau seek judicial notice of various documents filed in connection with this case, various documents from discovery in this case, a Coast Guard Vessel Documentation, and a Secretary of State Statement of Information. The RJN is granted.

  4. Legal Standard on Motion for Leave to Amend

    The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP ;;473 and 576.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

    The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

  5. Minor Changes to Complaint

    As noted above, the motion seeks to make a variety of minor changes to the complaint, none of which the defendants oppose. The motion will be granted as to those changes, and the remainder of this analysis relates to the request to add a cause of action for violation of the Magnuson-Moss Act only.

  6. Delay

    Defendants contend Plaintiff has delayed in filing this motion, and the motion should therefore be denied. As noted above, delay is only a ground for denial of a motion for leave to amend if the delay prejudices the defendant.

    Defendants correctly note that Plaintiff’s attorney, Robert F. Brennan, in his moving declaration, fails to provide the details required by CRC 3.1324(b), which requires the attorney declaration to state when the facts giving rise to the need for amendment were discovered and why the motion was not made earlier. Defendants argue failure to follow this rule results in mandatory denial of the motion, but they cite no authority for this position; indeed, the Rules of Court are procedural rules, not substantive rules, and they do not trump the case authority discussed above. Plaintiff, in reply, explains that the need for the additional cause of action has existed since the inception of the case, but it was only with the recent addition of co-counsel that the need to assert the cause of action became apparent.

    There was clearly a delay in filing this motion. The case has been pending since 10/23/17, and the facts that give rise to the cause of action have existed since at least that time. Defendants failed, however, to articulate any prejudice that they would suffer if the motion were granted. Pursuant to Hirsa, supra, the fact that an amendment involves a change in legal theory that would make admissible evidence damaging to the opposing party is not the kind of prejudice the Court will consider. In this case, Plaintiff will be using all of the same evidence to support the new cause of action that the parties have already discovered.

    Of note, trial in this case is scheduled for 2/22/21; Plaintiff, however, states in reply that the parties have agreed to continue trial until late 2021, which further reduces any potential prejudice that would result from granting this motion. Defendants failed to show that the delay prejudiced them, such that denial based on delay would be justified.

  7. Merits of Proposed Magnuson-Moss Cause of Action

    As noted above, denial on the ground that the proposed cause of action fails to state a cause of action is justified if and only if the proposed cause of action both fails to state a cause of action and also could not be further amended to state a cause of action. Defendants argue Plaintiff’s proposed cause of action fails to state a cause of action for violation of the Magnuson-Moss Consumer Protection Act because the evidence makes clear that Plaintiff did not purchase the vessel as a “consumer,” as defined by the Act.

    Defendants present a California Reseller’s Certificate with their opposing papers. The Certificate required Kim to certify that he intends to resell the boat and to not use it for personal purposes. However, the Certificate goes on to state, “I understand that if I use the item purchased under this certificate in any manner other than as just described, I will owe use tax based on each item’s purchase price or as otherwise provided by law.” The Certificate, therefore, does not establish that the vessel has been used for commercial purposes. The request to deny leave to amend on this ground is denied.

  8. Conclusion

    Plaintiff’s motion for leave to file a Third Amended Complaint is granted. Plaintiff is ordered to file a separate copy of the TAC within ten days. Defendants are ordered to file a responsive pleading within twenty days thereafter. Plaintiff is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.



Case Number: ****1439    Hearing Date: September 01, 2020    Dept: S27

DISCOVERY REFEREE RECOMMENDATIONS AND OBJECTIONS

  1. Background Facts

The gravamen of Plaintiff’s complaint is that Co-Defendants Naos Yachts and other individuals (the “broker defendants”) sold him a defective yacht. The Yacht was manufactured by Construction Navale Bordeaux, S.A. (“CNB”) and Beneteau, S.A. (“Beneteau”). Volvo Penta of the Americas, LLC (“Volvo”) manufactures engines for yachts and other parts. The problems with the vessel included “a non-working PCU, which controlled all of the electronics on the yacht” as well as problems with the electrical and navigational systems.

A written contract for purchase of the vessel, a 2016 Lagoon 630 motor yacht, was executed on March 6, 2016. A copy of the contract is appended to the complaint as Exhibit A.

The broker defendants allegedly promised a one-year warranty running from the date of delivery. Plaintiff took delivery in July 2016.

For about a week after delivery Plaintiff sailed the yacht around the environs of Fort Lauderdale, Florida to “assess” the yacht. He noticed defects, but the only defect specifically alleged was that the CPU was “non-working.” He presented the yacht to the broker defendants for repairs. On information and belief, Plaintiff alleges repairs were “delayed and hindered” although Plaintiff does not allege how, but concludes the purpose was to “burn” the one-year arbitration period thereby preventing Plaintiff from “exercising his rights.” Plaintiff alleges he was unaware that of a contractual provision requiring a demand for arbitration to be made within one year from delivery.

The broker defendants refused to allow Plaintiff to speak directly with the builder and “forced” Plaintiff to submit requests through them. There is no explanation as to how he was “forced” to do so or why he could not directly contact the builder.

In September 2016 a crew sailed the vessel from Florida to California for “final delivery.” The captain and crew noted “numerous problems” including the power system shutting off during use, the navigation system shutting off, vibrations from the port side engine (which allegedly required a complete replacement) and “incorrect” fuel gauges (the court infers this means the gauges displayed incorrect information and not that the incorrect type of gauges were installed.) The broker defendants were notified of the defects, and allegedly again delayed and hindered repairs.

Plaintiff alleges on information and belief that the broker defendants concealed the complaints from the manufacturers and used their own service people to attempt repairs. After several months “of no progress” Plaintiff demanded an inspection by employees of the builder. The builder’s representatives came from France, and attempted repairs but “as soon as one item was corrected, several new items were found.

Plaintiff alleges he has been damaged by (1) deprivation of the “full use and enjoyment of the yacht”; (2) thousands of dollars in monitoring repairs; and (3) loss of value due to the defects which is still undergoing repairs.

  1. Discovery Referee Recommendations

  1. Discovery Timeline

    On April 17, 2019, the court appointed Honorable Jonathan H. Cannon Ret. as the referee for all discovery motions and disputes relevant to discovery in this action.

    On May 31, 2019, the referee issued a recommendation to grant CNB’s motions to compel further responses to its FROG, DROG, RFP, and RFA, which the court adopted on June 7, 2019.

    On June 24, 2019, the referee issued a recommendation to deny Plaintiff’s motion for a protective order, and recommending that the confidential-only protective order proposed by Defendants be entered. The court adopted the recommendation on July 1, 2019.

    On November 6, 2019, the referee issued a recommendation to grant Beneteau’s motion to compel inspection of the vessel.

    On November 25, 2019, the referee issued a recommendation to grant in part and deny in part Plaintiff’s motion to compel further responses to his FROG and RFP against Defendant Beneteau.

    On December 20, 2019, the referee issued a recommendation to grant in part and deny in part Plaintiff’s motion to compel further responses to his FROG and RFP against Defendant Volvo.

    On December 23, 2019, the referee issued a recommendation to grant CNB’s motion to reduce Boundless Horizon’s attorney’s fees request, and that the latter should produce documents responsive to CNB’s August 16, 2019, subpoena. The referee also recommended granting CNB’s motion for sanctions in part against Plaintiff. On January 7, 2020, it appears that Plaintiff filed an objection to this recommendation. On January 17, 2020, and on January 22, 2020, Defendants CNB and Beneteau and Defendant Volvo filed their respective responses to the objection.

  2. Discussion

    As reflected above, Plaintiff filed a 1705 page single-filing objection to the referee’s recommendations on January 7, 2020. As a preliminary matter it is not readily apparent which recommendations are targeted by Plaintiff’s objections. No specific recommendations are identified in the papers and Plaintiff merely refers to “Defendants” without specifying who “Defendants” identifies. This sentiment is echoed by responding parties CNB and Beneteau. (CNB Resp. 1:23-25.)

    Nevertheless, Plaintiff appears to be objecting to the December 23, 2019, recommendation granting CNB’s motion to reduce Boundless Horizon’s attorney’s fees request, and that the latter should produce documents responsive to CNB’s August 16, 2019, subpoena, but also to the December 20, 2019, recommendation to grant in part and deny in part Plaintiff’s motion to compel further responses against Defendant Volvo, and to the November 25, 2019, recommendation granting CNB’s motions to compel further responses brought against Plaintiff.

    Pursuant to Code Civ. Proc. ; 643(c), “[a]ny party may file an objection to the referee's report or recommendations within 10 days after the referee serves and files the report, or within another time as the court may direct.” Here, Plaintiff offers no explanation as to why the objection was not brought within 10 days of any of the relevant recommendations. The objection is made 43, 18 and 15 days from the recommendations which appear to be the focus of Plaintiff’s papers.

    Furthermore, a recommendation which forms the basis of Plaintiff’s objection does not appear in the court record. Counsel for CNB and Beneteau, David Serrano, attaches a copy of a November 8, 2019, recommendation which was never filed with the court. (Serrano Decl. Exh. C.) The November 25, 2019, recommendation which consists of an amended version of the November 8, 2019, recommendation was filed with the court, albeit on March 20, 2020, 121 days after it was issued.

    It is also notable that Plaintiff objects to CNB’s motion to reduce an attorney’s fees request brought against Boundless Horizon’s, a party which did not and does not object to the referee’s recommendations.

    In addition to being untimely, Plaintiff’s objections fail to show good cause as to why the referee’s recommendations should not be adopted. Plaintiff argues without evidentiary support that he has been improperly billed nearly $30,000 by JAMS despite the referee’s hours not being approved by the court. The, Plaintiff proceeds to argues that “Defendants” should be ordered to respond to all the discovery requests. The objections consist mostly of a belabored recitation of law and a failure to specifically identify grounds for a deviation from a specific referee recommendation. Plaintiff concludes the objection papers with the assertion that “the petition should be denied.” It is again unclear to what Plaintiff refers.

    A discovery referee was appointed in this matter to hear and resolve discovery disputes. Here, Plaintiff’s objection papers sets forth no availing grounds as to why an identifiable recommendation should be reversed or decided differently.

  3. Conclusion

    Based on the foregoing, the court OVERRULES Plaintiff’s untimely objections.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

MOTION FOR JUDGMENT ON THE PLEADINGS

  1. Background Facts

The gravamen of Plaintiff’s complaint is that Co-Defendants Naos Yachts and other individuals (the “broker defendants”) sold him a defective yacht. The Yacht was manufactured by Construction Navale Bordeaux, S.A. (“CNB”) and Beneteau, S.A. (“Beneteau”). Volvo Penta of the Americas, LLC (“Volvo”) manufactures engines for yachts and other parts. The problems with the vessel included “a non-working PCU, which controlled all of the electronics on the yacht” as well as problems with the electrical and navigational systems.

A written contract for purchase of the vessel, a 2016 Lagoon 630 motor yacht, was executed on March 6, 2016. A copy of the contract is appended to the complaint as Exhibit A.

The broker defendants allegedly promised a one-year warranty running from the date of delivery. Plaintiff took delivery in July 2016.

For about a week after delivery Plaintiff sailed the yacht around the environs of Fort Lauderdale, Florida to “assess” the yacht. He noticed defects, but the only defect specifically alleged was that the CPU was “non-working.” He presented the yacht to the broker defendants for repairs. On information and belief, Plaintiff alleges repairs were “delayed and hindered” although Plaintiff does not allege how, but concludes the purpose was to “burn” the one-year arbitration period thereby preventing Plaintiff from “exercising his rights.” Plaintiff alleges he was unaware that of a contractual provision requiring a demand for arbitration to be made within one year from delivery.

The broker defendants refused to allow Plaintiff to speak directly with the builder and “forced” Plaintiff to submit requests through them. There is no explanation as to how he was “forced” to do so or why he could not directly contact the builder.

In September 2016 a crew sailed the vessel from Florida to California for “final delivery.” The captain and crew noted “numerous problems” including the power system shutting off during use, the navigation system shutting off, vibrations from the port side engine (which allegedly required a complete replacement) and “incorrect” fuel gauges (the court infers this means the gauges displayed incorrect information and not that the incorrect type of gauges were installed.) The broker defendants were notified of the defects, and allegedly again delayed and hindered repairs.

Plaintiff alleges on information and belief that the broker defendants concealed the complaints from the manufacturers, and used their own service people to attempt repairs. After several months “of no progress” Plaintiff demanded an inspection by employees of the builder. The builder’s representatives came from France, and attempted repairs but “as soon as one item was corrected, several new items were found.

Plaintiff alleges he has been damaged by (1) deprivation of the “full use and enjoyment of the yacht”; (2) thousands of dollars in monitoring repairs; and (3) loss of value due to the defects which is still undergoing repairs

  1. Motion for Judgment on the Pleadings

  1. Meet and Confer

    Defendants submit the Declaration of David Serrano, which adequately shows that Counsel attempted to meet and confer prior to bringing this demurrer. (Serrano Decl. ¶¶ 2-3.)

  2. Legal Standard on Judgment on the Pleadings

    It is well established in California that either prior to trial or at the trial the plaintiff or the defendant may move for judgment on the pleadings and that the appropriate ground for such a motion is the same as that arguable by general demurrer, namely, the failure to state a cause of action or defense. (Dobbins v. Hardister (1966) 242 Cal.App.2d 787, 791; see also Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [The non-statutory motion for judgment on the pleadings can be made at any time, even during trial, since the grounds for a general demurrer are never waived.].)

    A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (See, e.g., Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (TRG 1998) ;; 7:275, 7:322; Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Id.; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677; Edwards v. Centex Real Estate Corp, (1997) 53 Cal.App.4th 15, 27.) On a motion for judgment on the pleadings a court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. (See Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468-469; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.)

    The motion may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired; (2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired. (CCP ; 438(f).) The motion provided for in CCP ; 438 may be made even though either of the following conditions exist: (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer; (2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section. (CCP ; 438(g).) No motion may be made pursuant to CCP ; 438 if a pretrial conference order has been entered pursuant to CCP ; 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits. (CCP ; 438(e).)

    In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)

  3. Analysis re: Jurisdiction of the Court over the 6th, 7th, and 8th Causes of Action

    Defendants CNB and Beneteau (hereinafter “Defendants”) move for judgment on the pleadings as to the 6th cause of action for violation of the Song-Beverly Consumer Warranty Act, 7th Cause of Action for Breach of Express Warranty, and 8th Cause of Action for Implied Warranty of Merchantability fail because delivery of the vessel and title thereof occurred outside of California.

    “[T]he Supreme Court concluded that the Act applies only to vehicles sold in California. [Citation, ‘the Legislature intended the Act to apply only to vehicles sold in California” and “the Legislature contemplated that the Act would apply only if the goods were purchased in California’].” (Davis v. Newmar Corp. (2006) 136 Cal. App. 4th 275, 278.)

    The Purchase Contract attached to the Second Amended Complaint (“SAC”) reflects that the vessel was to be delivered from Bordeaux, France, to Fort Lauderdale, FL. (SAC Exh. A.) The SAC itself alleges that “[i]n or around June 20I6, the YACHT was loaded on a transport vessel and delivered from France to Florida. In or around July 20I6, Plaintiff took initial delivery of the YACHT in Florida.” (Id. ¶ 18.) “Upon delivery, Plaintiff sailed the YACHT in or around Fort Lauderdale, Florida and Miami for approximately one week to assess the YACHT.” (Id. ¶ 19.) None of the allegations pertaining to the purchase or delivery of the vessel have any connection to California so as to benefit from the Song-Beverly Act under Davis. (Davis, supra at 278.)

    In opposition, Plaintiff points to the allegations of the SAC which state that “[i]n or around September 2016, the YACHT was sailed from Florida to Long Beach, California, for final delivery to Plaintiff.” (SAC ¶ 22.) Additionally, Plaintiff argues that “[i]t is undisputed that Plaintiff negotiated and signed the purchase agreement in California,” and cites to the Purchase Agreement. The Purchase Agreement contains an address for Naos Yachts at “13555 Fiji Way, Marina del Rey, CA 90292,” but makes no other legible reference to California. Plaintiff also refers the court to paragraphs 39 through 41 of the SAC, which refer to a “date of closing” of the agreement between Plaintiff and Naos Yachts.

    Here, from the face of the SAC, title would not have passed to Plaintiff until the vessel was delivered to him in California, and the parties closed the deal. Defendants argue that “Plaintiff has not (and cannot) point to any California law (including any statute or case law interpreting the Song-Beverly Act) distinguishing between ‘initial’ versus ‘final’ delivery,” but ignore the language of the SAC which alleges that the parties did not close the deal until the vessel was delivered to California. (SAC ¶ 39.) Delivery of the yacht to Florida, where Plaintiff was able to test the vessel, does not appear dispositive of this issue if the parties had not closed the sale at that time, or that the parties agreed for delivery of the vessel to Long Beach. (Id. ¶ 19.) Additionally, Defendants argue that “[a]s the Purchase Contract and Addendum show the sale occurred in Bordeaux (or Florida, those documents control and his warranty claims (including Song-Beverly) fail as a matter of law.” (Motion 7:3-5.) The court disagrees with this position. As mentioned above, these documents reflect that the vessel is to be delivered from Bordeaux to Fort Lauderdale, but are not instructive as to whether the vessel was “sold in California.” (Davis v. Newmar Corp. (2006) 136 Cal. App. 4th 275, 278.)

    In their reply papers, Defendants refer to California State Elecs. Assn. v. Zeos Internat. Ltd., where the court noted that “when the parties agree to or contemplate shipment by the seller, title passes to the buyer upon that shipment, unless the agreement specifically requires the seller to make delivery at the destination,” and argues that there is no distinction between an “initial” and a “final” delivery. ((1996) 41 Cal. App. 4th 1270, 1276.) Defendants contend that under the shipment contract, title passed in Bordeaux, France, and that “Plaintiff (not Defendants) took delivery in France and had control of the vessel in Florida when he ‘sailed the [subject vessel] in or around Fort Lauderdale, Florida and Miami for approximately one week.”” (Reply 3:5-7; SAC ¶19.) Here, for purposes of judgment on the pleadings, the SAC alleges that the vessel was sailed from Florida to Long Beach, CA for final delivery. If there is no distinction between initial and final delivery, as so argued by Defendants, then Defendants have offered no authority for the proposition that title passed to Plaintiff prior to the parties affirmatively closing the deal when it appears from the pleadings that the parties agreed for the “seller to make delivery at the destination” in California. (California State Elecs. Assn., supra at 1270.) This issue is not appropriate for resolution upon motion for judgment on the pleadings, and Defendants have not shown that the claims cannot be brought as a matter of law from the face of the pleadings.

    Defendants’ Motion for Judgment on the Pleadings is DENIED on these grounds.

  4. Analysis re: 8th Cause of Action for Breach of Implied Warranty of Merchantability

    Defendants also move for judgment on the pleadings as to the 8th cause of action because Plaintiff cannot establish privity of contract with moving Defendants.

    “The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.” (Burr v. Sherwin Williams Co. (1954) 42 Cal. 2d 682, 695.) Defendants argue that “as Plaintiff had no written agreement with Beneteau or CNB, neither is liable for breach of implied warranty of merchantability claim.” (Motion 7:17-18.)

    In opposition, Plaintiff attempts to discredit the Burr holding as it was premised on the now-repealed Civil Code ; 1735, and contends that more relevant authority now exists. However, all three cases cited by Plaintiff are from the District Court for the Central District. Defendants argue in reply one of the cases cited by Plaintiff explicitly holds that “[u]nder the California Commercial Code section 2314, which imposes an implied warranty of merchantability in any sale of goods, vertical privity between a consumer and manufacturer is required.” (Erlich v. BMW of North America (2010) 801 F.Supp.2d 908, 921.) However, the Elrich court also noted that “the plain language of section 1792 of the Song–Beverly Act does not impose a similar vertical privity requirement.” (Id. at 921.) As Defendants make no argument as to why this claim should fail other than the jurisdictional argument discussed above, there remain no grounds to dismiss this claim by judgment on the pleadings.

    Finally, Plaintiff relies on In re Toyota Motor Corp., where the court held that “[a]lthough courts applying California law regarding the third-party beneficiary exception to the vertical privity requirement of implied warranty claims have come to differing conclusions, the clear weight of authority compels a conclusion that where plaintiffs successfully plead third-party beneficiary status, they successfully plead a breach of implied warranty claim.” (In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig. (C.D. Cal. 2010) 754 F. Supp. 2d 1145, 1184.)

    Defendants argues that this citation is irrelevant because “the exception discussed does not apply to consumer warranty actions and was not plead by Plaintiff.” (Reply 5:3-4.) In Stewart, the court held that prior authority “foreclose[d] a third-party-beneficiary exception to the rule of privity,” and held that that “it did not recognize or acknowledge a third-party beneficiary exception. Further, there is no published California authority recognizing this exception to privity in the consumer warranty context.” (Stewart v. Electrolux Home Prod., Inc. (E.D. Cal. 2018.) 304 F. Supp. 3d 894, 915.) Nevertheless, as reflected above, Defendants have not disposed of all bases for Plaintiffs’ breach of implied warranty claim.

    As such, the Motion for Judgment on the Pleadings is DENIED on this ground.

  5. Conclusion

    Defendants’ Motion for Judgment on the Pleadings is DENIED.

    Moving Defendants are ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.



Case Number: ****1439    Hearing Date: August 27, 2020    Dept: S27

Defendants, Construction Navale Bordeaux, S.A. and Beneteau, S.A. seek an order permitting Edward Hartman III to appear as counsel pro hac vice in this action. The application fully satisfies CRC 9.40. The applicant establishes that he is licensed in the State of Maryland and other courts, and is in good standing. He lives and maintains his office in Maryland. He has not appeared pro hac vice in any other action in California in the past two years. Hartman establishes that he does not regularly work on live in California. A licensed California attorney, David A. Serrano, is associated as counsel in this case.

The Court’s only concern is the lack of proof of service of the moving papers on the State Bar. Counsel, Serrano declares he paid the necessary fees and mailed a copy of the application to the State Bar. CRC 9.40(c)(1), however, requires a proof of service on the State Bar. This is a key distinction, as proof of service shows that the State Bar was given notice of the hearing date on the application and an opportunity to contest the application if it chooses to do so. Absent proof of service, the application cannot be granted. If Defendants provide timely proof of service on the State Bar prior to the hearing on the application, the Court will grant the application. If they do not, the application will be denied without prejudice.

Defendants are ordered to give notice.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where VOLVO PENTA OF THE AMERICA'S LLC is a litigant

Latest cases where NAOS YACHTS INC. is a litigant

Latest cases represented by Lawyer MYONG ROBERT S.