Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 1 of 10 Page ID #:328 JS-6 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 22-02748-RSWL-AGRx 12 SHARON JEANNE SHUBIN, ORDER re: 13 Plaintiff, DEFENDANT’S MOTION TO 14 v. DISMISS [23] 15 UNIVERSAL VACATION CLUB et 16 al., 17 Defendants. 18 Plaintiff Sharon Jeanne Shubin (“Plaintiff”) 19 brought the instant Action against Defendant Universal 20 Vacation Club (“Defendant”) alleging breach of warranty. 21 Currently before the Court is Defendant’s Motion to 22 Dismiss [23]. 23 Having reviewed all papers submitted pertaining to 24 the Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 25 the Court GRANTS Defendant’s Motion WITHOUT LEAVE TO 26 AMEND. 27 /// 28 1 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 2 of 10 Page ID #:329

1 I. BACKGROUND 2 A. Factual Background

3 Plaintiff alleges the following in her First 4 Amended Complaint (“FAC”): 5 Plaintiff is an individual domiciled in Idaho. 6 First Am. Compl. (“FAC”) ¶ 3, ECF No. 22. Defendant is 7 an international corporation which conducts business in 8 California and is headquartered in Nevada. Id. ¶ 4. 9 Defendant is a vacation ownership management company 10 serving as the homeowners’ association for Villa Group 11 and Villa del Arco. Id. Defendant’s members are owners 12 of timeshare interests in approved affiliate resorts, 13 including a resort in Cabo San Lucas, Mexico (the 14 “Resort”). Id. 15 On April 25, 2008, Plaintiff and Defendant signed a 16 promissory note (“Agreement”) outlining Plaintiff’s Gold 17 Membership at the Universal Vacation Club. Id. ¶ 12. 18 Accordingly, Plaintiff reserved a stay at the Resort for 19 November 2019. Id. ¶¶ 8, 17. Upon her arrival, 20 Plaintiff was shown to her suite, which was equipped 21 with a heavy wall bed (the “Murphy Bed”). Id. ¶ 13. 22 The Murphy Bed contained lifting components which folded 23 up into the wall when not in use. Id. On November 25, 24 2019, Plaintiff was in her suite lowering the Murphy Bed 25 when it fell out of the wall and landed on the lower 26 part of her body. Id. ¶¶ 14-15. 27 As a result of the incident, Plaintiff sustained 28 leg injuries and received medical services at a hospital 2 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 3 of 10 Page ID #:330

1 in Cabo San Lucas, Mexico and later at a hospital in 2 Boise, Idaho. Id. ¶¶ 19-24. 3 B. Procedural Background 4 Plaintiff filed her Complaint [1] on April 25, 5 2022. Defendant filed the instant Motion [25] on 6 September 29, 2022. Plaintiff opposed [28] the Motion 7 on October 11, 2022. Defendant replied [29] on October 8 18, 2022. 9 II. DISCUSSION 10 A. Legal Standard 11 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 12 allows a party to move for dismissal on one or more 13 claims if a pleading fails to state a claim upon which 14 relief can be granted. Fed. R. Civ. P. 12(b)(6). Under 15 Rule 8(a), a complaint must contain “a short and plain 16 statement of the claim showing that the pleader is 17 entitled to relief” to give the defendant “fair notice 18 of what the . . . claim is and the grounds upon which it 19 rests.” Bell Atl. Corp. v. Twombly,

, 555 20 (2007); see also Fed. R. Civ. P. 8(a). Dismissal is 21 proper “where the complaint lacks a cognizable legal 22 theory or sufficient facts to support a cognizable legal 23 theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521

(9th Cir. 2008) (citing Balistreri v. 25 Pacifica Police Dep’t,

(9th Cir. 26 1988)). 27 “To survive a motion to dismiss, a complaint must 28 contain sufficient factual matter, accepted as true, to 3 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 4 of 10 Page ID #:331

1 ‘state a claim to relief that is plausible on its

2 face.’” Ashcroft v. Iqbal,

(2009)

3 (quoting Twombly,

). While a complaint 4 need not contain detailed factual allegations, it must 5 provide more than “labels and conclusions” or “a 6 formulaic recitation of the elements of a cause of 7 action.” Twombly,

. The plaintiff must 8 allege enough facts “to raise a right to relief above 9 the speculative level.”

In evaluating a Rule 10 12(b)(6) motion, a court must take all well-pleaded 11 allegations of material fact as true and construe them 12 in the light most favorable to the nonmovant. Great 13 Minds v. Off. Depot, Inc.,

(9th Cir. 14 2019). A court may generally consider only “the 15 complaint itself and its attached exhibits, documents 16 incorporated by reference, and matters properly subject 17 to judicial notice.” In re NVIDIA Corp. Sec. Litig., 18

(9th Cir. 2014). 19 “When the running of the statute [of limitations] 20 is apparent from the face of the complaint . . . the 21 defense may be raised by a motion to dismiss.” Conerly 22 v. Westinghouse Elec. Corp.,

(9th Cir. 23 1980). 24 B. Discussion 25 1. Judicial Notice 26 A court may judicially notice an adjudicative fact 27 that is “not subject to reasonable dispute because it: 28 (1) is generally known within the trial court’s 4 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 5 of 10 Page ID #:332

1 territorial jurisdiction; or (2) can be accurately and

2 readily determined from sources whose accuracy cannot

3 reasonably be questioned.” Fed. R. of Evid. 201(b). 4 Under the judicially created incorporation-by-reference 5 doctrine, “[a] court may consider evidence on which the 6 complaint ‘necessarily relies’ if: (1) the complaint 7 refers to the document; (2) the document is central to 8 the plaintiff’s claim; and (3) no party questions the 9 authenticity of the copy attached to the 12(b)(6).” 10 Marder v. Lopez,

(9th Cir. 2006). 11 Judicial notice is proper for documents satisfying the 12 incorporation-by-reference doctrine. In re Maxwell 13 Techs., Inc. Derivative Litig., No. 13-CV-966-BEN RBB, 14

, at *1 (S.D. Cal. May 27, 2014). 15 Here, Defendant has requested that the Court 16 judicially notice or incorporate by reference the 17 contract between Plaintiff and Defendant to purchase 18 timeshare interests. See Detering Decl. ¶ 3, ECF No. 19 23-1. Plaintiff cites to and attaches the same contract 20 to her Complaint to establish a landlord-tenant 21 relationship between Plaintiff and Defendant. See 22 generally FAC. Plaintiff’s breach of warranty claim 23 relies on an alleged landlord-tenant relationship 24 between herself and Defendant. Additionally, neither 25 Plaintiff nor Defendant question the authenticity of the 26 documents attached to Defendant’s Motion to Dismiss. 27 See generally Mot.; see also Opp’n. Therefore, since 28 the FAC necessarily relies on the contract under the 5 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 6 of 10 Page ID #:333

1 incorporation-by-reference doctrine, the Court

2 incorporates the contract by reference.

3 2. Plaintiff’s Breach of Warranty Claim Is 4 Inadequately Pled1 5 a. Breach of Implied Warranty 6 In arguing that there “was a warranty that the 7 furniture in [Plaintiff’s] room was fit for use and 8 occupation,” Plaintiff appears to invoke the implied 9 warranty of habitability.2 See Opp’n 4:14-15. To state 10 a claim for breach of the implied warranty of 11 habitability, a plaintiff must show: 1) the existence of 12 a materially defective condition affecting habitability; 13 2) notice to the landlord of the condition within a 14 reasonable time after the tenant’s discovery of the 15 condition; and 3) that the landlord was given a 16 reasonable time to correct the deficiency and resulting 17 damages. Ghazaryan v. Shabazian, No. LACV1708245JAKSSX, 18

, at *5 (C.D. Cal. Aug. 2, 2018) (citing 19 Erlack v. Sierra Asset Servicing, LLC,

1 While Defendant has argued that the two-year Mexican 21 statute of limitations applies to any tort claims brought by Plaintiff, it is unclear whether the same limitations period 22 applies to Plaintiff’s breach of warranty claims. For this reason, the Court declines to extend the two-year Mexican statute 23 of limitations to Plaintiff’s breach of warranty claims. Instead, the Court analyzes Plaintiff’s breach of warranty claims 24 under the 12(b)(6) pleading standard. 25 2 Plaintiff does not specify in her FAC whether she alleges a breach of an implied or express warranty. See generally FAC. 26 Therefore, the Court considers whether she has sufficiently alleged in her Complaint a breach of an express warranty, a 27 breach of an implied warranty, or whether she has sufficiently 28 alleged a breach of both. 6 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 7 of 10 Page ID #:334

1 1281, 1297 (2014)). 2 Here, Plaintiff failed to sufficiently plead an 3 implied warranty of habitability claim. See generally 4 FAC. Plaintiff only alleged the first element, 5 materially defective condition. Id. ¶ 33. Plaintiff 6 ultimately failed to allege the other elements of an 7 implied warranty of habitability claim because there is 8 no indication of a landlord-tenant relationship between 9 Plaintiff and Defendant. See generally id.; see also 10 Ghazaryan,

, at *4 (noting that a tenant 11 may state a cause of action against his landlord for a 12 breach of the implied warranty of habitability). 13 Plaintiff attempts to plead an implied warranty of 14 habitability claim by asserting that she is a lodger. 15 See generally Opp’n. She asserts that she is a lodger 16 because the contract with Defendant states “membership 17 entitles the owner thereof to executive lodging rights 18 and services in an unspecified Unit . . .” FAC ¶ 30. 19 However, Plaintiff discusses her alleged lodger status 20 and her warranty of habitability claim in regard to her 21 relationship with the Resort, not Defendant.

22 Furthermore, the provisions of the Agreement, signed 23 between Plaintiff and Defendant, clearly state that 24 Defendant “does not own, and will not own, the real 25 property, land, or buildings of the Resort . . . and is 26 not related” to the Resort. Ex. 1 at 16, ECF No. 23-2. 27 Thus, because Plaintiff is not in a landlord-tenant 28 relationship with Defendant, Plaintiff has not pled 7 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 8 of 10 Page ID #:335

1 facts “to raise a right to relief above [a] speculative

2 level.” See Bell Atl. Corp. v. Twombly,

,

3 555 (2007). Therefore, Plaintiff has failed to 4 sufficiently allege a breach of an implied warranty 5 claim. 6 b. Breach of Express Warranty 7 A breach of an express warranty requires the 8 plaintiff to plead the “terms of the warranty, 9 plaintiff’s reasonable reliance thereon, and a breach of 10 that warranty which proximately causes plaintiff 11 injury.” Watkins v. MGA Ent., Inc.,

815, 830 (N.D. Cal. 2021) (internal quotation marks and 13 citation omitted). To adequately plead the “terms of 14 the warranty, a plaintiff must identify a specific and 15 unequivocal written statement relating to the title, 16 character, quality, identity, or condition of the sold 17 goods.”

(internal quotation marks and citations 18 omitted). 19 Here, Plaintiff fails to state a claim for breach 20 of an express warranty. Any allegation of the terms of 21 a warranty is entirely absent from the FAC. See 22 generally FAC. In addition, Plaintiff has not 23 identified any specific written statements relating to 24 her hotel room’s warranted condition. See generally

25 Instead, Plaintiff broadly alleges that Defendant 26 “warranted that . . . the Resort would . . . be in good 27 condition and would be reasonably safe from dangerous 28 conditions such as the collapsing Murphy Bed.”

¶ 8 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 9 of 10 Page ID #:336

1 35. Plaintiff has neither shown that Defendant 2 expressly warranted in writing the safety of Plaintiff’s 3 hotel room, nor has Plaintiff identified any terms of 4 such a warranty.3 Ultimately, Plaintiff has not 5 adequately pled a breach of an express warranty claim in 6 her FAC. Therefore, the Court GRANTS Defendant’s Motion 7 to Dismiss Plaintiff’s breach of warranty claim. 8 3. Leave to Amend 9 “The court should give leave [to amend] freely when 10 justice so requires.” Fed. R. Civ. P. 15(a)(2). In the 11 Ninth Circuit, “Rule 15’s policy of favoring amendments 12 to pleadings should be applied with ‘extreme 13 liberality.’” United States v. Webb,

, 979 14 (9th Cir. 1981). Against this liberal standard, the 15 Court may consider “the presence of any of four factors: 16 bad faith, undue delay, prejudice to the opposing party, 17 and/or futility.” Owens v. Kaiser Found. Health Plan, 18 Inc.,

(9th Cir. 2001). While the 19 Ninth Circuit has “stressed Rule 15’s policy of favoring 20 amendments,” leave need not be granted where amendment 21 would be “an exercise in futility.” Ascon Props., Inc. 22 v. Mobil Oil Co.,

, 1160 (9th Cir. 1989). 23 Here, allowing Plaintiff to amend the FAC would be 24 25 3 The Court previously afforded Plaintiff leave to amend her original Complaint on the breach of warranty claim. In her 26 amended Complaint, Plaintiff only added allegations relating to her claim for an implied warranty of habitability. See generally 27 FAC. Plaintiff did not add any allegations supporting her breach 28 of an express warranty claim. Id. 9 Case 2:22-cv-02748-RSWL-AGR Document 32 Filed 12/09/22 Page 10 of 10 Page ID #:337

1 futile because Plaintiff has not indicated that any 2 additional facts exist that would establish a breach of 3 warranty. Given that Plaintiff and Defendant were not 4 in a landlord-tenant relationship and that no express 5 written warranty exists, a breach of warranty claim 6 cannot be cured through further amendment. Because the 7 defective breach of warranty claim cannot be cured 8 through amendment, leave to amend would be futile. See 9 Nat’l Funding, Inc. v. Com. Credit Counseling Servs., 10 Inc.,

, 385 (9th Cir. 2020) (affirming 11 district court’s denial of leave to amend because no 12 additional facts are available that would support 13 plaintiff’s claim to cure its deficiencies). Therefore, 14 the Court GRANTS Defendant’s Motion to Dismiss 15 Plaintiff’s breach of warranty claim WITHOUT LEAVE TO 16 AMEND. 17 III. CONCLUSION 18 In sum, Plaintiff failed to sufficiently plead a 19 breach of warranty claim in her FAC. Based on the 20 foregoing, the Court GRANTS Defendant’s Motion to 21 Dismiss Plaintiff’s breach of warranty claim WITHOUT 22 LEAVE TO AMEND. 23 24 IT IS SO ORDERED. 25 26 DATED: December 9, 2022 /s/Ronald S.W. Lew HONORABLE RONALD S.W. LEW 27 Senior U.S. District Judge 28 10