Case 2:17-cv-00035-VAP-KS Document 28-2 Filed 03/03/17 Page 1 of 8 Page ID #:276

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9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
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12 PAUL STOCKINGER, ELIZABETH Case No. 2:17-cv-00035-VAP (KSx)
STOCKINGER, GAILYN
13 KENNEDY, BASUDEB DEY, [PROPOSED] ORDER GRANTING
BRENDA FLINN, and ELIEZER
14 CASPER on behalf of themselves and TOYOTA MOTOR SALES, U.S.A.,
all others similarly situated, INC.S MOTION TO DISMISS
15 PLAINTIFFS CLASS ACTION
Plaintiffs,
16 COMPLAINT AND REQUEST FOR
vs. JUDICIAL NOTICE
17 TOYOTA MOTOR SALES, U.S.A.,
INC., a California corporation, Date: April 3, 2017
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Defendant. Time: 2:00 p.m.
19 Judge: Hon. Virginia A. Phillips
Ctrm.: 8A
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[PROPOSED] ORDER GRANTING
TOYOTAS MOTION TO DISMISS AND
REQUEST FOR JUDICIAL NOTICE
DB1/ 90809597.1
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1 Pending before this Court is the motion of Defendant Toyota Motor Sales,
2 U.S.A., Inc. (Toyota) to dismiss the Class Action Complaint (Complaint), filed
3 by Plaintiffs Paul Stockinger, Elizabeth Stockinger, Gailyn Kennedy, Basudeb Dey,
4 Brenda Flinn, and Eliezer Casper (collectively, Plaintiffs), pursuant to Rules
5 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure and request for judicial
6 notice in support thereof. After full consideration of the moving and opposing
7 papers of all parties, supporting declarations and exhibits, the arguments of counsel,
8 and all other matters presented to the Court, IT IS HEREBY ORDERED that:
9 Toyotas motion to dismiss the Complaint is GRANTED WITHOUT
10 LEAVE TO AMEND. Plaintiffs have failed to state a claim against Toyota upon
11 which relief may be granted for any of their purported causes of action under:
12 (1) California Consumer Legal Remedies Act, Cal. Civ. Code 1750, et seq.
13 (CLRA), (2) California Unfair Competition Law, Cal. Bus. & Prof. Code
14 17200, et seq. (UCL), (3) Fraud, (4) Negligent Misrepresentation, (5) Breach of
15 Express Warranty, (6) Breach of Implied Warranty, (7) Violation of the Magnuson-
16 Moss Warranty Act, 15 U.S.C. 2301, et seq., (8) Violation of the Song-Beverly
17 Consumer Warranty Act, Cal. Civ. Code 1791, et seq., (9) Unjust Enrichment,
18 (10) Violation of the Florida Unfair & Deceptive Trade Practices Act., Fla. Stat.
19 501.201, et seq., (11) Violation of the Kansas Consumer Protection Act, Kan.
20 Stat. Ann. 50-623, et seq., (12) Violation of the Virginia Consumer Protection
21 Act, Va. Code Ann. 59.1-196, et seq., and (13) Violation of the Washington
22 Consumer Protection Act, RCW 19.86, et seq.
23 Plaintiffs fail to allege a defect with their own HVAC systems that is causing
24 the odors complained of. Plaintiffs allegations on information and belief are
25 insufficient to allege a defect with their vehicles. Blantz v. Cal. Dept of Corr. &
26 Rehab., 727 F.3d 917, 927 (9th Cir. 2013) (conclusory allegations on information
27 and belief were insufficient to state a claim in the absence of specific factual
28 allegations regarding [the defendants] involvement in the actions giving rise to this
[PROPOSED] ORDER GRANTING
1 TOYOTAS MOTION TO DISMISS AND
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1 lawsuit). The facts that Plaintiffs plead on information and belief are ones that
2 are either known to Plaintiffs or are ascertainable by them. Plaintiffs are in
3 possession of their vehicles and whether their HVAC systems retain water or
4 contain mold growth is ascertainable by them. See Yagman v. General Motors Co.,
5 No. CV-14-4696-MWF AGRX, 2014 WL 4177295, at *3 (C. D. Cal. Aug. 22,
6 2014) (dismissing complaint for failing to plausibly allege a defect under
7 Iqbal/Twombly, in part because the [p]laintiff is in the best position to ascertain the
8 condition of the car engine, which evidently is still in his possession). Absent
9 such factual allegations, the Court cannot conclude that Plaintiffs have plausibly
10 alleged a design defect in their vehicles.
11 Plaintiffs defect-related allegations fail for another reason. Although
12 Plaintiffs allege the existence of odor, they do not plead any facts to support that the
13 alleged defect causes odors from their HVAC systems. This failure is critical
14 because absent causation, Plaintiffs have not sufficiently pled that their HVAC
15 systems contain the alleged defect. Decoteau v. FCA US LLC, No.
16 215CV00020MCEEFB, 2015 WL 6951296, at *1 (E.D. Cal. Nov. 10, 2015);
17 Yagman, supra, 2014 WL 4177295, at *3.
18 The foregoing failures require dismissal of Plaintiffs Complaint in its
19 entirety.
20 Plaintiffs fraud-based claims fail because Plaintiffs do not identify a material
21 misrepresentation made by Toyota about their vehicles or HVAC systems. See,
22 e.g., Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Similarly,
23 Plaintiffs fail to identify a fact omitted by Toyota and that Toyota had a duty to
24 disclose this fact. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th
25 Cir. 2012) (observing that California courts have generally rejected a broad duty to
26 disclose . . .); White v. Potocska, 589 F. Supp. 2d 631, 642 (E.D. Va. 2008) (same
27 under Virginia law); Plastic Packaging Corp. v. Sun Chem. Corp., 136 F. Supp. 2d
28 1201, 1205 (D. Kan. 2001) (same under Kansas law); TransPetrol, Ltd. v.
[PROPOSED] ORDER GRANTING
2 TOYOTAS MOTION TO DISMISS AND
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1 Radulovic, 764 So. 2d 878, 879 (Fla. 4th DCA 2000) (stating that [a] defendants
2 knowing concealment or non-disclosure of a material fact may only support an
3 action for fraud where there is a duty to disclose); Favors v. Matzke, 53 Wash.
4 App. 789, 796 (1989) ([T]he rule has always been that silence as to the material
5 facts is not fraud where there is no duty to disclose). Moreover, it is undisputed
6 that Toyota discloses the possibility of HVAC odor in its owners manuals, which
7 undermines any allegation of a failure to disclose, let alone exclusive knowledge
8 or active concealment by Toyota. Herron v. Best Buy Co. Inc., 924 F. Supp. 2d
9 1161, 1175 (E.D. Cal. 2013) (exclusive knowledge requires plaintiffs to show
10 that Toyota knew of th[e] defect while plaintiffs did not, and, given the nature of
11 the defect, it was difficult to discover); Plastic Packaging Corp., 136 F. Supp. 2d
12 at 1205 (D. Kan. 2001) (same under Kansas law); Favors, 53 Wash. App. at 796
13 (same under Washington law); Taragan v. Nissan N. Am., Inc., No. C 09-3660
14 SBA, 2013 WL 3157918, at *7 (N.D. Cal. June 20, 2013) (quoting Gray v. Toyota
15 Motor Sales, U.S.A., No. CV 08-1690 PSG JCX, 2012 WL 313703, at *9 (C.D. Cal.
16 Jan. 23, 2012) (holding that mere nondisclosure does not constitute active
17 concealment under California law).
18 Plaintiffs fail to plead a breach of warranty claim. Plaintiffs breach of
19 express warranty claim fails because the written warranty is limited to defects in
20 materials and/or workmanship and does not cover design defects. See In re
21 Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab.
22 Litig., 754 F. Supp. 2d 1145, 1180-81 (C.D. Cal. 2010). Plaintiffs breach of
23 warranty claims fail for another reason, too. Regardless of the type of defect at
24 issue, a manufacturer is not liable for breach of express warranty merely because a
25 product manifests recurring failures during the warranty period. Rather, the
26 question is whether [a plaintiff] sought repairs, refunds, or replacements and, if so,
27 whether [the manufacturer] responded appropriately under the warranty. Coe v.
28 Philips Oral Healthcare Inc., No. C13-518-MJP, 2014 WL 722501, at *7 (W.D.
[PROPOSED] ORDER GRANTING
3 TOYOTAS MOTION TO DISMISS AND
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1 Wash. Feb. 24, 2014) (dismissing breach of express warranty claim because the
2 plaintiffs did not allege that they exercised the warranty or that the defendant
3 responded inappropriately), citing Kent v. Hewlett-Packard Co., No. 09-5341 JF
4 PVT, 2010 WL 2681767, at *10 (N.D. Cal. July 6, 2010).
5 Plaintiffs also fail to plead a breach of the implied warranty of
6 merchantability because their vehicles are fit for their ordinary purpose of providing
7 transportation. See Troup v. Toyota Motor Corp., 545 F. Appx 668, 669 (9th Cir.
8 2013); accord Lowe v. Mercedes Benz of N. Am., 103 F.3d 118,1996 WL 694433,
9 at *4 (4th Cir. Dec. 5, 1996) (dismissing implied warranty claim as the vehicle was
10 in compliance because it was at all times fit and used for its ordinary purpose
11 transportation).
12 The failure to plead an underlying breach of warranty claim requires
13 dismissal of Plaintiffs claims under the Song-Beverly Warranty Act and the
14 Magnuson-Moss Warranty Act. See Birdsong v. Apple, Inc., 590 F.3d 955, 958,
15 n. 2 (9th Cir. 2009). Further, Plaintiffs failure to avail themselves of Toyotas
16 information dispute resolution procedures as required by 15 U.S.C. 2310(a)
17 requires dismissal of Plaintiffs Magnuson-Moss Warranty Act claim.
18 Plaintiffs fail to otherwise allege an unlawful or unfair business practices
19 that would give rise to any state consumer protection claim. See Lopez v.
20 Washington Mut. Bank, F.A., 302 F.3d 900, 907 (9th Cir. 2002) (requiring violation
21 of a predicate law to support an unlawful UCL claim); see also Cel-Tech Comm.,
22 Inc., v. Los Angeles Cell. Tel. Co., 20 Cal. 4th 163, 187 (1999) (finding that in order
23 for a business act to be considered unfair, it must be tethered to some
24 legislatively declared policy or proof of some actual or threatened impact on
25 competition).
26 The WCPA and FDUPTA follow the FTCAs definition of unfair, which
27 exists when a practice causes or is likely to cause substantial injury to consumers
28 which is not reasonably avoidable by consumers themselves and is not outweighed
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1 by countervailing benefits. Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 787 (2013)
2 (quoting 15 U.S.C. 45(n)); accord Adelson v. U.S. Legal Support, Inc., 715 F.
3 Supp. 2d 1265, 1277 (S.D. Fla. 2010). Plaintiffs Casper and the Stockingers do not
4 even attempt to pled the elements of this theory. Thus, their claims under the
5 WCPA and FDUPTA, respectively, should be dismissed.
6 Plaintiffs claims for equitable relief fail because they have not alleged that
7 there is an inadequate remedy at law, and the claims alleged (e.g., breach of
8 warranty and fraud) may entitle them to an adequate legal remedy. See Franklin v.
9 Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 62 (1992); Rhynes v. Stryker Corp., 2011
10 No. 10-5619 SC, WL 2149095, at *4 (N.D. Cal. May 31, 2011); accord Licul v.
11 Volkswagen Grp. of Am., Inc., No. 13-61686-CIV, 2013 WL 6328734, at *7 (S.D.
12 Fla. Dec. 5, 2013) (Florida law); accord Shafer, Kline & Warren, Inc. v. The Allen
13 Grp.-Kansas City, LLC, No. 13-2472-JAR-TJJ, 2014 WL 1974525, at *2 (D. Kan.
14 May 15, 2014) (Kansas law); accord Seattle Profl Engg Employees Assn v.
15 Boeing Co., 139 Wash. 2d 824, 839 (2000) (Washington law). Plaintiffs claims for
16 equitable relief also fail because they rely on the same facts for both their claims
17 seeking equitable remedies from her claims seeking legal remedies. See Zapata
18 Fonseca v. Goya Foods, Inc., 2016 No. 16-CV-02559-LHK, 2016 WL 4698942,
19 * 7 (N.D. Cal. Sept. 8, 2016).
20 Plaintiffs claim for unjust enrichment (Compl. at 179 185) also must be
21 dismissed because Plaintiffs allege the existence and enforceability of an express
22 contract and unjust enrichment is unavailable to redefine that relationship. See
23 Maloney v. Indymac Mortg. Servs., No. CV 13-04781 DDP AGRX, 2014 WL
24 6453777, *7 (C.D. Cal. Nov. 17, 2014) (dismissing unjust enrichment claim
25 because Rule 8 does not allow a plaintiff to circumvent state law by stating a claim
26 for both express and quasi contract); see also Brown v. Transurban USA. Inc.,
27 144 F. Supp. 3d 809, 844 (E.D. Va. 2015) ([A] condition precedent to the assertion
28 of . . . a[n] [unjust enrichment] claim is that no express contract exists between the
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1 parties) (internal citation omitted); Shafer, Kline & Warren, Inc., 2014 WL
2 1974525, at *2 (same under Kansas law); Diamond S Dev. Corp. v. Mercantile
3 Bank, 989 So. 2d 696, 697 (Fla. Dist. Ct. App. 2008) (same under Florida law);
4 Chandler v. Wash. Toll Bridge Authority, 17 Wash. 2d 591, 605 (1943) (same under
5 Washington law).
6 Further, unjust enrichment is not an independent claim under prevailing
7 California law. In re Toyota Motor Corp., 754 F. Supp. 2d at 1193-94 (Simply
8 put, there is no cause of action in California for unjust enrichment (internal
9 citations omitted)).
10 Plaintiffs also fail to establish standing to pursue their claims relating to
11 vehicles they did not purchase and do not own. See Wilson v. Frito-Lay N. Am.,
12 Inc., 961 F. Supp. 2d 1134, 1141 (N.D. Cal. 2013).
13 Further, Toyotas request for judicial notice is GRANTED and the Court
14 takes judicial notice of Exhibit 1 attached the Declaration of David L. Schrader and
15 Exhibits 1 9, attached to the Declaration of Barry M. Hare, as well as the fact that
16 mold can be found in virtually every environment, both indoors and outdoors.
17 These documents and facts are not subject to reasonable dispute because they
18 can be accurately and readily determined from sources whose accuracy cannot
19 reasonably be questioned. Fed. R. Evid. 201(b). Likewise, scientific factssuch
20 as the fact that mold can be found virtually anywhereare readily judicially
21 noticeable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993)
22 (noting that firmly established scientific theories properly are subject to judicial
23 notice); see also United States v. DeBetham, 348 F. Supp. 1377, 1383 (S.D. Cal.)
24 (General scientific acceptance is a proper condition upon the courts taking
25 judicial notice of scientific facts.) affd sub nom. United States v. De Betham,
26 470 F.2d 1367 (9th Cir. 1972).
27 Further, the incorporation by reference doctrine provides an independent
28 basis for the Courts consideration of exhibits attached to the Schrader and Hare
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1 declarations. See Knievel v. ESPN, 393 F.3d 1068, 1076-1077 (9th Cir. 2005);
2 Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on
3 other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006).
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5 IT IS SO ORDERED.
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7 Dated: ______________, 2017
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HON. VIRGINIA A. PHILLIPS
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DISTRICT COURT CHIEF JUDGE
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[PROPOSED] ORDER GRANTING
7 TOYOTAS MOTION TO DISMISS AND
DB1/ 90809597.1 REQUEST FOR JUDICIAL NOTICE