McGee v. Mercedes-Benz USA, LLC

• Court: District Court, S.D. California
• Decided: March 30, 2020
• Docket: 3:19-cv-00513
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 WILLIAM R. MCGEE, Case No.: 19cv513-MMA (WVG) 11 ORDER GRANTING DEFENDANT’S 12 Plaintiff, MOTION FOR SUMMARY v. JUDGMENT 13 MERCEDES-BENZ USA, LLC, [Doc. No. 22] 14 15 Defendant. 16 17 Plaintiff William R. McGee (“Plaintiff”) commenced the instant action against 18 Defendant Mercedes-Benz USA, LLC (“Defendant”) in San Diego County Superior 19 Court. See Doc. No. 1-2 (hereinafter “Compl.”). Plaintiff asserts two claims for the 20 breach of express and implied warranties arising from his purchase of a new Mercedes 21 vehicle pursuant to California’s Song-Beverly Consumer Warranty Act (“Song-Beverly 22 Act”), Cal. Civ. Code § 1790 et seq. See id. On March 18, 2019, Defendant removed the 23 action to this Court based on diversity jurisdiction. See Doc. No. 1. Defendant now 24 moves for summary judgment. See Doc. No. 22. Plaintiff filed an opposition, to which 25 Defendant replied. See Doc. Nos. 23, 24. The Court found the matter suitable for 26 determination on the papers and without oral argument pursuant to Civil Local Rule 27 7.1.d.1. See Doc. No. 25. For the reasons set forth below, the Court GRANTS 28 Defendant’s motion for summary judgment. 1 BACKGROUND1 2 This action arises out of Plaintiff’s purchase of a 2015 Mercedes-Benz C350c (the 3 “vehicle”) on or about December 29, 2015. Plaintiff purchased the vehicle for his wife, 4 Arlene McGee. Plaintiff received a 4-year/50,000-mile warranty from Defendant with 5 the purchase of the vehicle.2 At the time of purchase, the vehicle had approximately 6 fifty-two (52) miles on it. 7 The vehicle is subject to National Highway Traffic Safety Administration 8 (“NHTSA”) Recall No. 19v010 for the recall of the passenger-side Takata airbag inflator 9 (“Takata Recall”). In February 2019, Plaintiff received a Takata Recall interim notice 10 letter. See Doc. No. 22-6. The notice provides that Mercedes-Benz USA “has decided 11 that a defect, which relates to motor vehicle safety, exists in certain Model Year 2010- 12 2017 C-Class, E-Class Coupe/Cabrio, GLK-Class, and SLS-Class Mercedes-Benz 13 vehicles. Our records indicate that your vehicle is included in the affected population of 14 vehicles.” Id. at 1.3 Specifically, “[u]nder certain circumstances during a crash that 15 necessitates frontal airbag deployment, the defect in your passenger-side airbag inflator 16 may cause the airbag to explode.” Id. “Unfortunately, replacement parts are not yet 17 available for your vehicle, but we will contact you again once parts become 18 available.” Id. (emphasis in original). 19 Shortly after receiving the Takata Recall interim notice letter, Plaintiff presented 20 the vehicle to Defendant’s authorized service center for repair of the passenger-side 21 22 1 These material facts are taken from the parties’ separate statements of undisputed facts and 23 pertinent cited exhibits. Disputed material facts are discussed in further detail where relevant to the Court’s analysis. Facts that are immaterial for purposes of resolving the current motion are not included 24 in this recitation. 25 2 Defendant’s express warranty provides that, for the original owner of a new Mercedes-Benz 26 vehicle, “any authorized Mercedes-Benz Center will make any repairs or replacements necessary to correct defects in material or workmanship arising during the warranty period.” Doc. No. 23-4 27 (hereinafter “Plaintiff Decl.”), Ex. A.

28 1 Takata airbag inflator. However, the Takata airbag replacement parts are not yet 2 available for the vehicle and the service repair center was unable to repair the passenger- 3 side airbag. Since purchasing the vehicle, Plaintiff and his wife have continued to drive 4 with passengers in the front passenger seat—including after receiving notice of the 5 Takata Recall. Plaintiff and his wife have not experienced any issue with the alleged 6 Takata airbag inflator defect. 7 Plaintiff claims that due to the passenger-side airbag defect, he and his wife have 8 lost confidence and peace of mind in the safety of the vehicle. Plaintiff asserts that the 9 nonconformity “substantially impairs the use, value and/or safety of the Subject Vehicle 10 to Plaintiff.” Compl. ¶ 12. Plaintiff seeks rescission of the contract and restitution of all 11 consideration, actual compensatory and general damages, and a civil penalty. See Compl. 12 LEGAL STANDARD 13 “A party may move for summary judgment, identifying each claim or defense—or 14 the part of each claim or defense—on which summary judgment is sought. The court 15 shall grant summary judgment if the movant shows that there is no genuine dispute as to 16 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 17 P. 56(a). A fact is material if it could affect the outcome of the suit under applicable law. 18 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute about a 19 material fact is genuine if there is sufficient evidence for a reasonable jury to return a 20 verdict for the non-moving party. Id. at 248. 21 The party seeking summary judgment bears the initial burden of establishing the 22 basis of its motion and of identifying the portions of the declarations, pleadings, and 23 discovery that demonstrate absence of a genuine issue of material fact. See Celotex Corp. 24 v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does not bear the burden of 25 proof at trial, he may discharge his burden of showing no genuine issue of material fact 26 remains by demonstrating that “there is an absence of evidence to support the nonmoving 27 party’s case.” Id. at 325. The burden then shifts to the opposing party to provide 28 admissible evidence beyond the pleadings to show that summary judgment is not 1 appropriate. Id. at 324. The party opposing summary judgment cannot “rest upon the 2 mere allegations or denials of [its] pleading but must instead produce evidence that sets 3 forth specific facts showing that there is a genuine issue for trial.” Estate of Tucker v. 4 Interscope Records, 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) 5 (internal quotation marks omitted). 6 “In judging evidence at the summary judgment stage, the court does not make 7 credibility determinations or weigh conflicting evidence. Rather, it draws all inferences 8 in the light most favorable to the nonmoving party.” Soremekun v. Thrifty Payless, Inc., 9 509 F.3d 978, 984 (9th Cir. 2007). 10 DISCUSSION 11 1. Defendant’s Evidentiary Objections 12 As a preliminary matter, Defendant objects to two portions of Mrs. McGee’s 13 declaration, dated February 14, 2020, submitted in support of Plaintiff’s opposition to the 14 instant motion. See Doc. No. 24-2. First, Defendant objects to two sentences in the third 15 paragraph of Mrs. McGee’s declaration on hearsay grounds. See id. at 1. In the relevant 16 portion of her declaration, Mrs. McGee states that her service advisor, Mr. Islas, “advised 17 me that he was aware of the Subject Recall but that the parts necessary to repair the 18 passenger-side airbag defect were not available. Mr. Islas advised me that we would be 19 contacted by Mercedes-Benz when the parts were available to repair the airbag.” Doc. 20 No. 23-3 (hereinafter “A. McGee Decl.”) ¶ 3. 21 Hearsay is a statement made out of court and offered for the truth of the matter 22 asserted therein. See Fed. R. Evid. 801(c). Unless evidence satisfies an exception to the 23 hearsay rule, or can be classified as non-hearsay, it is inadmissible at trial. See Fed. R. 24 Evid. 802. 25 Here, Defendant’s hearsay objection is not well-taken. The objected-to statements 26 could be presented in an admissible form at trial. For example, Mrs. McGee could 27 rephrase her testimony to avoid any hearsay problem. Moreover, Plaintiff presents 28 essentially the same information in his declaration, which Defendant does not object to. 1 See Plaintiff Decl. ¶ 5. Thus, the Court may consider this evidence in the summary 2 judgment context. See Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). As such, 3 the Court OVERRULES Defendant’s hearsay objection. 4 Second, Defendant objects to the fifth paragraph of Mrs. McGee’s declaration, in 5 its entirety, pursuant to the sham affidavit rule. Specifically, Defendant claims that Mrs. 6 McGee’s statements contradict her prior deposition testimony. See Doc. No. 24-2. 7 “The general rule in the Ninth Circuit is that a party cannot create an issue of fact 8 by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. 9 Co., 952 F.2d 262, 266 (9th Cir. 1991). The Ninth Circuit has fashioned “two important 10 limitations on a district court’s discretion to invoke the sham affidavit rule.” Van Asdale 11 v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). First, the rule does not apply 12 automatically to every case where a contradictory affidavit is introduced; rather, “the 13 district court must make a factual determination that the contradiction was actually a 14 ‘sham.’” Id. (quoting Kennedy, 952 F.2d at 267). Second, “the inconsistency between a 15 party’s deposition testimony and subsequent affidavit must be clear and unambiguous to 16 justify striking the affidavit.” Id. at 998-99. 17 In her declaration, Mrs. McGee states that “[s]ince hearing of the Subject Recall . . 18 ., neither my daughter nor my mother will ride in the subject vehicle as a passenger and I 19 must take an alternate vehicle when planning to travel with either of them.” A. McGee 20 Decl. ¶ 5. Defendant claims that this paragraph contradicts Mrs. McGee’s September 21 2019 deposition testimony, where Mrs. McGee estimated that her mother rode as a 22 passenger in the vehicle “[p]robably three” times in the last month. Doc. No. 24-3 at 19.4 23 Mrs. McGee further testified that her daughter, Serena, rode as a passenger in the vehicle, 24 “[p]robably six” times in the last month. Id. at 20. Mrs. McGee indicated that the last 25 month was “[p]retty typical” for her. Id. 26 Here, the Court finds that both limitations are satisfied. On September 4, 2019, 27 28 1 just seven months after learning of the Takata Recall, Mrs. McGee testified under oath 2 that her mother and daughter were passengers in her vehicle on several occasions within 3 the last month. However, in support of Plaintiff’s opposition to the instant motion, Mrs. 4 McGee declares that since learning of the recall, “neither my daughter nor my mother 5 will ride in the subject vehicle as a passenger and I must take an alternate vehicle when 6 planning to travel with either of them.” A. McGee Decl. ¶ 5. Mrs. McGee offers no 7 explanation for the change in her testimony. As such, the Court finds that the 8 contradictions in Mrs. McGee’s declaration are a “sham,” and that the inconsistencies 9 between the deposition testimony and subsequent declaration are “clear and 10 unambiguous” and not just “minor inconsistencies that result from an honest discrepancy, 11 mistake, or newly discovered evidence.” Van Asdale, 577 F.3d at 998-99. Accordingly, 12 the Court SUSTAINS Defendant’s objection to the fifth paragraph of Mrs. McGee’s 13 declaration pursuant to the sham affidavit rule. 14 2. Defendant’s Motion for Summary Judgment 15 Defendant moves for summary judgment as to Plaintiff’s claims, arguing that the 16 “existence of the Takata Recall that cannot immediately be performed [does not] give[] 17 rise to a breach of the Song-Beverly Consumer Warranty Act.” Doc. No. 22 at 1. In 18 opposition, Plaintiff asserts that triable issues of fact preclude summary judgment as to 19 his express and implied warranty claims. See Doc. No. 23. The Court addresses 20 Plaintiff’s claims in turn. 21 a. Breach of Express Warranty 22 Defendant first argues that Plaintiff’s breach of express warranty claim fails 23 because Plaintiff presents insufficient evidence to satisfy the nonconformity and failure to 24 repair elements. See Doc. No. 24 at 2, 7. In opposition, Plaintiff asserts that the Takata 25 Recall “creates a triable issue of fact for the Defendant’s violation of express warranty 26 under the Song-Beverly Act.” Doc No. 23 at 6. 27 A plaintiff pursuing an action under the [Song-Beverly] Act has the burden 28 1 to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle 2 (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation 3 element); and (3) the manufacturer or his representative did not repair the 4 nonconformity after a reasonable number of repair attempts (the failure to repair element). 5 6 Oregal v. American Isuzu Motors, Inc., 109 Cal. Rptr. 2d 583, 588 (Ct. App. 2001). 7 Among other things, section 1793.2 (or the “Lemon Law” of the Song-Beverly 8 Act) requires manufacturers to replace a nonconforming vehicle or reimburse the buyer if 9 the vehicle cannot be repaired after a reasonable number of attempts. See Nat’l R.V., Inc. 10 v. Foreman, 34 Cal. App. 4th 1072, 1077 (1995). A “nonconformity” under the Act is a 11 defect that substantially impairs the use, value, or safety of a vehicle to the buyer. Cal. 12 Civ. Code § 1793.22(e). Goods shall be serviced or repaired within a reasonable time— 13 typically “within 30 days”—by the manufacturer or its representatives. Cal. Civ. Code § 14 1793.2(b). Where a distributor is unable to conform a vehicle to warranty, the distributor 15 must “promptly replace the new motor vehicle . . . or make restitution to the buyer.” Cal. 16 Civ. Code § 1793.2(d). 17 Here, the Takata Recall interim notice letter alone is insufficient to satisfy the 18 nonconformity element. First, Plaintiff cites to no case law to support his proposition that 19 the recall letter constitutes an admission by Defendant that the vehicle has a 20 nonconformity covered by the express warranty. Second, the language of the Takata 21 Recall interim notice letter provides that a defect exists in certain Mercedes vehicles. See 22 Doc. No. 22-6. While the company’s “records indicate that [Plaintiff’s] vehicle is 23 included in the affected population of vehicles,” under “certain circumstances during a 24 crash that necessitates frontal airbag deployment, the defect in your passenger-side airbag 25 inflator may cause the airbag to explode.” Id. at 1 (emphasis added). Third, Plaintiff 26 presents no evidence that the passenger airbag is actually defective. In fact, it is 27 undisputed that alleged Takata airbag defect has never manifested in Plaintiff’s vehicle, 28 1 despite being driven for nearly forty thousand miles over the course of several years. 2 Finally, it is undisputed that the vehicle has not presented any other problems that have 3 substantially impaired the vehicle’s use, value, or safety. As such, Plaintiff cannot satisfy 4 the nonconformity element. See Adams v. FCA US LLC, No. CV 16-4317-JFW 5 (MRWx), 2016 WL 9136170, at *5 (C.D. Cal. Dec. 27, 2016) (“[B]ecause Plaintiff 6 experienced no defects in her Jeep, only potential defects that were the subject of the 7 recall notices . . ., Plaintiff cannot satisfy the nonconformity element.”) (emphasis in 8 original). 9 Even if Plaintiff could satisfy the nonconformity element, Plaintiff is unable to 10 satisfy the failure to repair element. Plaintiff maintains that the undisputed evidence 11 reveals that Defendant “has not and cannot repair the Subject Vehicle. As such, the 12 evidence in the present case satisfies the failure to repair element.” Doc. No. 23 at 9-10. 13 Plaintiff, however, overlooks the Song-Beverly Act’s exception for delays due to 14 “conditions beyond the control of the manufacturer or its representatives.” Cal. Civ. 15 Code § 1793.2(b). Such conditions “serve to extend this 30-day requirement. Where 16 delay arises, conforming goods shall be tendered as soon as possible following 17 termination of the condition giving rise to the delay.” Cal. Civ. Code § 1793.2(b). 18 It is undisputed that the remedy parts for Plaintiff’s passenger airbag are not yet 19 available. Additionally, it is undisputed that the parts are unavailable due to conditions 20 beyond Defendant’s control. The Takata Recall interim notice letter states, 21 “[u]nfortunately, replacement parts are not yet available for your vehicle, but we 22 will contact you again once parts become available. You may visit 23 www.mbusa.com/recall and enter your vehicle model, Model Year, and State your 24 vehicle is registered to check when remedy parts will be available.” Doc. No. 22-6 at 25 1 (emphasis in original). “As soon as a suitable replacement part is available for your 26 vehicle, we will send another letter notifying you to bring your vehicle to your local 27 Authorized Mercedes-Benz dealer to repair your vehicle free of charge.” Id. (emphasis 28 in original). As such, the cases Plaintiff cites to wherein dealers refused to perform a 1 repair are inapposite. Therefore, Plaintiff cannot satisfy the failure to repair element. See 2 Cal. Civ. Code § 1793.2(b). 3 Accordingly, because Plaintiff cannot satisfy either the nonconformity or failure to 4 repair elements, the Court GRANTS Defendant’s motion for summary judgment as to 5 Plaintiff’s breach of express warranty claim under the Song-Beverly Act. 6 b. Breach of Implied Warranty 7 Second, Defendant asserts that Plaintiff’s breach of implied warranty claim fails 8 because the vehicle experienced no defected-related symptoms and is fit for its ordinary 9 purpose of driving. See Doc. No. 22 at 10. Defendant further contends that summary 10 judgment is appropriate because the vehicle did not manifest any recall-related defects or 11 symptoms during the Song-Beverly Act’s implied warranty period. See id. Plaintiff 12 claims that in light of the Takata Recall interim notice letter, “there is a triable issue of 13 material fact that the Subject Vehicle was fit for the ordinary purposes for which 14 passenger vehicles are used at the time it was sold to Plaintiff.” Doc. No. 23 at 13. 15 An implied warranty of merchantability accompanies every retail sale of consumer 16 goods in the state, unless specific disclaimer methods are followed. See Cal. Civ. Code § 17 1792; Music Acceptance Corp. v. Lofing, 32 Cal. App. 4th 610, 619 (1995). An implied 18 warranty of merchantability guarantees that “consumer goods[:]” (1) pass without 19 objection in the trade under the contract description; (2) are fit for the ordinary purposes 20 for which such goods are used; (3) are adequately contained, packaged, and labeled; and 21 (4) conform to the promises or affirmations of fact made on the container or label. Cal. 22 Civ. Code § 1791.1(a). The implied warranty of merchantability “arises by operation of 23 law” and “provides for a minimum level of quality.” Am. Suzuki Motor Corp. v. Sup. Ct., 24 37 Cal. App. 4th 1291, 1295-96 (1995). 25 The basic inquiry is whether the vehicle was fit for driving. See Keegan v. Am. 26 Honda Motor co., Inc., 838 F. Supp. 2d 929, 945 (C.D. Cal. 2012). “A vehicle that has 27 been materially damaged will not ‘pass without objection’ in the trade as a ‘new car.’” 28 Id. at 946 (citing cases). Thus, California courts “‘reject the notion that merely because a 1 vehicle provides transportation from point A to point B, it necessarily does not violate the 2 implied warranty of merchantability. A vehicle that smells, lurches, clanks, and emits 3 smoke over an extended period of time is not fit for its intended purposes.’” Id. (quoting 4 Isip v. Mercedes-Benz USA, LLC, 65 Cal. Rptr. 3d 695, 700 (Ct. App. 2007)). “The core 5 test of merchantability is fitness for the ordinary purpose for which goods are used.” Isip, 6 65 Cal. Rptr. 3d at 700. “Such fitness is shown if the product is ‘in safe condition and 7 substantially free from defects’ . . . .” Mexia v. Rinker Boats Co., Inc., 95 Cal. Rptr. 3d 8 285, 289 (Ct. App. 2009) (quoting Isip, 65 Cal. Rptr. 3d at 700). 9 The duration of the implied warranty of merchantability is no more than one year 10 following the sale of the good. See Cal. Civ. Code § 1791.1(c). However, “[t]here is 11 nothing [in the text of the statute] that suggests a requirement that the purchaser discover 12 and report to the seller a latent defect within that time period.” Mexia, 95 Cal. Rptr. 3d at 13 295; see also Daniel v. Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015). 14 Here, the Court finds that the existence of the Takata Recall, without any related 15 malfunction, is insufficient to raise a genuine dispute of material fact that the vehicle was 16 unfit for its intended use. “[T]he existence of a safety recall does not adequately allege a 17 substantial safety hazard existed.” Gutierrez v. Carmax Auto Superstores Cal., 248 Cal. 18 Rptr. 3d 61, 75 (Ct. App. 2018). Moreover, as noted above, despite owning and driving 19 the vehicle for nearly four years, Plaintiff and his wife never experienced any problems 20 relating to the Takata Recall. The Takata Recall also indicates that under certain 21 circumstances, the passenger-side airbag may not deploy properly. “In asserting a 22 warranty claim, ‘[i]t is not enough to allege that a product line contains a defect or that a 23 product is at risk for manifesting this defect; rather, the plaintiffs must allege that their 24 product actually exhibited the alleged defect.’” Taragan v. Nissan N. Am., Inc., No. C 25 09-3660 SBA, 2013 WL 3157918, at *4 (N.D. Cal. June 20, 2013) (emphasis in original) 26 (quoting O’Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009)). Thus, because 27 there is no evidence that any defect manifested in the vehicle, Plaintiff’s argument that 28 the Takata Recall interim notice letter raises a triable issue of material fact that the 1 vehicle was fit for its intended use is unpersuasive. See Gutierrez, 248 Cal. Rptr. 3d at 76 2 (affirming dismissal of the plaintiff’s breach of implied warranty claim under the Song- 3 Beverly Act because the plaintiff failed to adequately allege the vehicle was unfit for 4 ordinary purposes due to the safety recall); Taragan, 2013 WL 3157918, at *4 (“Here, 5 none of the Plaintiffs has actually experienced a rollaway incident. Thus, Plaintiffs’ 6 claim of defect, as pled, is theoretical.”). 7 Finally, Plaintiff fails to present any other evidence sufficient to raise a genuine 8 dispute of material fact that the vehicle is unfit for its ordinary purpose of providing 9 transportation. While Plaintiff and Mrs. McGee contend that they have lost faith and 10 confidence in the safety of the vehicle due to the Takata Recall, Plaintiff “provides no 11 support for the proposition that a remote fear or expectation of failure is sufficient to 12 establish non-merchantability.” Am. Suzuki, 37 Cal. App. 4th at 1298. Importantly, 13 Plaintiff and his wife have not claimed that they stopped using their vehicle. See Lee v. 14 Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962, 980 (C.D. Cal. 2014) (“In this 15 case, Plaintiffs have not alleged that they stopped using their vehicles.”). To the contrary, 16 Plaintiff and his wife have continued to drive the vehicle with passengers in the front seat 17 even after receiving notice of the Takata Recall, without ever experiencing any issue with 18 the alleged Takata airbag inflator defect. “The implied warranty of merchantability 19 requires only that a vehicle be suitable for ordinary use. It need not be perfect in every 20 detail so long as it ‘provides for a minimum level of quality.’” Id. (quoting American 21 Suzuki, 37 Cal. App. 4th at 1296). As such, in viewing the evidence in the light most 22 favorable to Plaintiff, Plaintiff fails to raise a genuine dispute of material fact as to the 23 ordinary fitness of his vehicle and summary judgment is appropriate. “To hold otherwise 24 would, in effect, contemplate indemnity for a potential injury that never, in fact, 25 materialized. And, compensation would have to be paid for a product ‘defect’ that was 26 never made manifest, in a product that for the life of any warranty . . . performed as [the 27 manufacturer] guaranteed it would.” Am. Suzuki, 37 Cal. App. 4th at 1299; see also 28 Hines v. Mercedes-Benz USA, LLC, 358 F. Supp. 2d 1222, 1233 (N.D. Ga. 2005) 1 ||(granting summary judgment on the plaintiff's claim for breach of implied warranty 2 || where the plaintiff “does not allege that the vehicle was ever rendered inoperable, or that 3 capacity to operate as a means of transportation was ever disabled by defects alleged 4 ||in the Complaint.”). 5 Accordingly, because the vehicle experienced no defected-related symptoms and 6 || Plaintiff fails to raise a dispute of material fact as to the vehicle’s fitness for its ordinary 7 || purpose of driving, the Court GRANTS Defendant’s motion for summary judgment as to 8 || Plaintiff's implied breach of warranty claim under the Song-Beverly Act.° 9 CONCLUSION 10 Based on the foregoing, the Court GRANTS Defendant’s motion for summary 11 ||judgment as to all claims. The Court DIRECTS the Clerk of Court to enter judgment 12 accordingly and close the case. 13 14 IT IS SO ORDERED. 15 16 || Dated: March 30, 2020 17 18 Lbitah ltallr 19 United States District Judge 20 21 22 23 24 25 26 27 5 As such, the Court need not reach Defendant’s remaining argument regarding the timeliness of 28 || plaintiff's breach of implied warranty claim.