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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • 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

LEWIS BRISBOIS BISGAARD & SMITH LLP

LAW OFFICES OF ALEXANDER T GRUFT

PORT ANDREW IRA

JULIAN JOCELYN ANN

GRUFT ALEXANDER T

 

Court Documents

Other -

10/23/2017: Other -

Unknown

12/8/2017: Unknown

Case Management Statement

2/23/2018: Case Management Statement

Case Management Statement

2/26/2018: Case Management Statement

Unknown

3/16/2018: Unknown

Unknown

3/16/2018: Unknown

Notice and Acknowledgment of Receipt

5/7/2018: Notice and Acknowledgment of Receipt

Unknown

5/9/2018: Unknown

Unknown

5/15/2018: Unknown

Notice of Ruling

6/4/2018: Notice of Ruling

Case Management Statement

10/12/2018: Case Management Statement

Notice

10/17/2018: Notice

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

11/8/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Request for Judicial Notice

1/31/2019: Request for Judicial Notice

Minute Order

2/26/2019: Minute Order

Brief

3/13/2019: Brief

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

3/14/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice

4/15/2019: Notice

123 More Documents Available

 

Docket Entries

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

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  • 06/12/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 06/07/2019
  • Order (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)

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  • 06/07/2019
  • Case Management Statement; Filed by NAOS YACHTS INC. - CA CORP (Defendant)

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  • 06/05/2019
  • Case Management Statement; Filed by VOLVO PENTA OF THE AMERICAS LLC - DEL LLC (Defendant)

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  • 05/28/2019
  • Case Management Statement; Filed by CONSTRUCTION NAVALE BORDEAUX, S.A. + DDBA (Defendant); BENETEAU S.A. DBA GROUPE BENETEAU - ENT (Defendant)

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  • 05/06/2019
  • Notice (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)

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  • 05/06/2019
  • Notice (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)

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  • 04/18/2019
  • Notice (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)

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

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154 More Docket Entries
  • 12/08/2017
  • Rtn of Service of Summons & Compl; Filed by DAVID KIM - INDIV. (Plaintiff)

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  • 12/08/2017
  • Rtn of Service of Summons & Compl; Filed by DAVID KIM - INDIV. (Plaintiff)

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  • 12/08/2017
  • Rtn of Service of Summons & Compl; Filed by DAVID KIM - INDIV. (Plaintiff)

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  • 11/09/2017
  • Stipulation and Order; Filed by NAOS YACHTS INC. - CA CORP (Defendant); CHARLES DEVANNEAUX- INDIV. (Defendant); PHILLIP WINTER - NDIV. (Defendant)

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  • 10/23/2017
  • Civil Case Cover Sheet

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  • 10/23/2017
  • Complaint; Filed by DAVID KIM - INDIV. (Plaintiff)

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  • 10/23/2017
  • Notice of Case Assignment - Unlimited Civil Case

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  • 10/23/2017
  • Other - (Order to Show cause Hearing)

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  • 10/23/2017
  • Notice of Case Management Conference

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  • 10/23/2017
  • Summons; Filed by Plaintiff

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Tentative Rulings

Case Number: NC061439    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: NC061439    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.