Hiroyaki Oda et al v. Demarini Sports Inc et alNOTICE OF MOTION AND MOTION to Dismiss Causes of Action Five and Six of Plaintiffs' First Amended Complaint Pursuant to FRCP 12C.D. Cal.December 21, 20161 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 SEYFARTH SHAW LLP Eric R. McDonough emcdonough@seyfarth.com One Century Plaza 2029 Century Park East, Suite 3500 Los Angeles, California 90067 Telephone: 310-201-5200 Facsimile: 310-282-6900 SEYFARTH SHAW LLP Michael R. Levinson (Pro Hac Vice) mlevinson@seyfarth.com Louis Chronowski (Pro Hac Vice) lchronowski@seyfarth.com 131 South Dearborn Street, Suite 2400 Chicago, IL 60603 Telephone: 312-460-5868 KEY & ASSOCIATES JEFFERY A. KEY (Pro Hac Vice) 321 N. Clark Street, Suite 500 Chicago, IL 60654 Telephone: 312-560-2148 Facsimile: 312-957-1236 Attorneys for Defendant WILSON SPORTING GOODS CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION HIROYAKI ODA, a California resident; COREY ROTH, a California resident, individually, and on behalf of themselves and all others similarly situated, Plaintiffs, vs. DeMARINI SPORTS, INC.; DeMARINI SPORTS GROUP LIMITED PARTNERSHIP; WILSON SPORTING GOODS CO.; VARI-WALL TUBE SPECIALISTS, INC.; JACKSON TUBE SERVICE, INC., and DOES 1 to 10, inclusive, Defendants. Case No. 8:15-cv-02131-JLS (JCGx) [Assigned to Hon. Josephine L. Staton Courtroom 10-A] CLASS ACTION NOTICE OF MOTION AND MOTION TO DISMISS CAUSES OF ACTION FIVE AND SIX OF PLAINTIFFS’ FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) Date: January 20, 2017 Time: 2:30 pm Courtroom: 10-A Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 1 of 13 Page ID #:1356 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD: NOTICE IS HEREBY GIVEN THAT on January 20, 2017 at 2:30 p.m. before the Honorable Josephine L. Staton in Courtroom 10-A of the United States Courthouse for the Central District of California, Southern Division, 411 West 4th Street, Santa Ana, California, Defendant Wilson Sporting Goods, Co. (“Wilson”) will and hereby do move the Court to dismiss the Causes of Action Five and Six of Plaintiffs’ First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. These causes of action are for strict product liability, but the attempted claims are barred by the economic loss rule – Plaintiffs have not alleged any personal injury or injury to other property. Pursuant to Local Rule 7-3 on December 7, 2016 (more than five days prior to the last day for filing the motion) counsel for Wilson contacted counsel for Plaintiffs in an attempt to schedule a meet and confer. One of Plaintiffs’ law firms indicated it was available, but the other law firm would not make anyone available until at least the following week, or less than 5 days before the Motion was due. Wilson’s counsel provided a written description of the motion to dismiss, and continued trying to telephone Plaintiffs’ counsel to confer. Plaintiffs’ counsel would not speak on the phone, and refused to confer unless a specific attorney from two separate firms could be on the call. Finally, when Wilson indicated it would need to simply inform the Court of its efforts to confer, Plaintiffs granted a four business day extension for Wilson’s motion date and agreed to confer. The parties conferred on December 15, 2016, but Plaintiffs declined to take action regarding their defective First Amended Complaint Count Five and Count Six. Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 2 of 13 Page ID #:1357 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 Plaintiffs agreed to voluntarily dismiss two named defendants that are non- existent entities: DeMarini Sports, Inc. and DeMarini Sports Group Limited Partnership. See Declaration of Jeffery Key, filed herewith. DATED: December 21, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: / s / Eric R. McDonough Eric R. McDonough Attorneys for Defendant WILSON SPORTING GOODS CO. Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 3 of 13 Page ID #:1358 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 1 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION DeMarini is a brand owned by Wilson. Plaintiffs allege that they each purchased a 2014 “DeMarini”brand “White Steel” model bat (Dkt. 43, ¶ 11). Plaintiffs allege that the bat cracked during use (Dkt. 43, ¶¶ 19, 20). Plaintiffs acknowledge that Wilson had a warranty that specifically covered their cracked bats. (Dkt. 43, ¶ 10). Neither Plaintiff was injured. Both Plaintiffs allege that they wanted a warranty remedy. Both plaintiffs claim that the warranty remedy they wanted was not given to them. (Dkt. 43, ¶¶ 19, 20). The First Amended Complaint asserts seven (7) causes of action: 1) First Cause - the Consumers Legal Remedies Act (“CLRA”); 2) Second Cause - the California Business & Professions Code (“UCL”); 3) Third Cause - Song—Beverly Warranty Act; 4) Fourth Cause - breach of implied warranty; 5) Fifth Cause- strict products liability— defective design or manufacture; 6) Sixth Cause - strict products liability – failure to warn; and 7) Seventh Cause - violation of the Magnuson-Moss Warranty Act. As set forth in the following Memorandum of Points and Authorities, there is good cause for the relief requested in this Motion. Plaintiffs’ Fifth and Sixth Causes of Action fail to state a claim upon which relief can be granted for strict product liability because: 1) Plaintiffs did not incur any personal injury or suffer any property damage other than damage to the purchased product; therefore, the Plaintiffs are barred from recovery under the economic loss rule; 2) the allegations in Plaintiffs’ First Amended Complaint are feigned recitations of elements of a cause of action but are not allegations of fact. They are mere speculations; and 3) Plaintiffs did not allege causation between Wilson’s supposed failure to warn and Plaintiffs’ alleged damages (which are strictly economic); moreover, Plaintiffs state no more than a breach of contract claim. The Fifth and Sixth Causes of Action in Plaintiffs’ First Amended Complaint should be dismissed. Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 4 of 13 Page ID #:1359 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 2 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 II. PROCEDURAL HISTORY AND STATEMENT OF FACTS Hiroyaki Oda and Corey Roth (“Plaintiffs”) filed their First Amended Complaint on or about December 2, 2016 (Dkt. 43), alleging that they, and members of a putative class, purchased bats from Wilson, specifically DeMarini brand “White Steel” bats. Plaintiffs allege that the White Steel bats contained an inherent defect, and that the bats cracked in use within Wilson’s one-year warranty period (Dkt. 43, ¶¶ 19, 20). Plaintiffs seek damages for Wilson’s refusal to refund their purchase. (Id.) The First Amended Complaint differs from the original Complaint filed one year earlier primarily by the addition of new defendants: Vari-Wall Tube Specialists, Inc. and Jackson Tube Service, Inc. (Dkt. 43). Plaintiffs made essentially the same allegations against the added parties. Softball bats are made to create a violent collision of the bat barrel with the large ball, repeatedly. The walls of the softball bats are made thin enough to deflect and impart energy to hit the ball farther. There is a trade-off between the flexibility of the thin bat wall and the durability of such wall. As admitted by Plaintiffs, Wilson provides a one year warranty for the White Steel bats. The warranty specifically covers the bat cracking within one year of purchase. (Dkt. 43, ¶ 10). Therefore, Wilson’s warranty contemplates and expressly provides the consumer a remedy for bats that crack during play. The Plaintiffs contacted Wilson regarding their cracked bats, and were offered the then current replacement program, but Plaintiffs refused the warranty replacements, seeking instead a full refund. (Dkt. 43, ¶¶ 19, 20). Thereafter, Plaintiffs filed the instant action. Pertinent to this motion, in the First Amended Complaint, Plaintiffs assert three separate strict liability claims1, under Causes of Action Five andSsix. The three strict 1 Plaintiffs have combined their claims for defective design and their manufacturing defect into their Fifth Cause of Action and entitled it “Damages for Strict Products Liability – Defective Design and/or Manufacture (By Plaintiffs Asserted on Behalf of Themselves and the California Class Against Defendants). (Dkt. 43). Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 5 of 13 Page ID #:1360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 3 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 liability claims are: 1) a claim based upon an alleged manufacturing defect; 2)a claim based upon an alleged design defect; and 3) a claim based upon Wilson’s alleged failure to warn. Plaintiffs remaining claims all sound in contract, relating to breach of warranty or violation of California consumer laws. The Fifth Cause of Action for strict product liability – defective design and/or manufacture alleges: 111. At the time the DeMarini [White Steel] Softball Bats left the manufacturer and control of Defendants and were sold, the Softball Bats were defective in design and/or manufacturing in that they had a propensity to bend, flatten, and/or crack during normal and intended use. *** 114. Plaintiffs and California Class members have suffered damages, the amounts of which will be determined at trial. Defendants are strictly liable for the harm caused by the design and/or manufacturing defects… Plaintiffs’ Sixth Cause of Action is for strict products liability – failure to warn, and also fails to state a claim. Specifically, they allege: 126. As a direct and proximate result of Defendants’ failure to warn of the defects contained in the Softball Bats, Plaintiffs and the California Class members suffered property damage and economic loss, in an amount to be determined at trial. Plaintiff and the California Class are also entitled to costs of litigation, attorneys' fees, and any other or further relief the Court deems proper. Fatal to the causes of action for strict products liability is the absence of any injury to person, or damage to other property. The only damage alleged in the First Amended Complaint is damage to the bat, the product at issue. Plaintiffs were not personally injured in any way, and there is no indication anyone has ever been hurt by a fissure or Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 6 of 13 Page ID #:1361 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 4 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 other crack in the White Steel bats. Plaintiffs’ strict product liability claims rest entirely on their own economic loss, or their speculative allegations of harm Plaintiffs imagine could happen, but did not happen. Plaintiffs fail to offer any specific allegations of an actual defect in the baseball bats that was not covered by the Wilson repair or replace warranty. While the allegations generally track some of the legal elements for strict product liability claims, there are no facts ever pled identifying a recognized injury, nor is it alleged what aspect of the baseball bat makes it defective. Moreover, no allegation identifies how the baseball bat deviated from Wilson’s specifications, or identifies a specific design defect. Plaintiffs’ failure to identify what specific defect, if any, is causing the alleged failure of the product renders their allegations insufficient. Nothing identifies what damages the Plaintiffs incurred, either to person or other property. In fact, nothing in Plaintiffs’ First Amended Complaint even identifies further damage to the product in question, aside from a crack that was covered by a warranty. Plaintiffs’ pleading provides no factual enhancements and are simply generalized assertions. Plaintiffs’ allegations require Wilson to guess the basis of the allegations against them and speculate as to any alleged damages. III. LEGAL STANDARD A motion to dismiss, pursuant to Fed. R. Civ. Pro. 12(b)(6), should be granted where there is a “ ‘lack of a cognizable legal theory’ ” or where there is an “ ‘absence of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.2011) (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990)). To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)). This determination has two steps. First, the court may “begin by identifying pleadings that, because they are no Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 7 of 13 Page ID #:1362 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 5 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S. Ct. 1937. A complaint that only offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotation marks omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (internal quotation marks omitted). Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (internal citation omitted). However, well-pleaded factual “[a]llegations in the complaint, together with reasonable inferences therefrom, are assumed to be true for purposes of the motion.” Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir.2007). Assuming a complaint has well-pleaded facts, the court must address whether those facts, and reasonable inferences therefrom, give rise to a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. 1955. Furthermore, the Ninth Circuit has emphasized that Twombly's pleading standards serve to protect defendants from being “subjected to the expense of discovery and continued litigation” absent “factual allegations that ... plausibly suggest an entitlement to relief.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011). Accordingly, because Plaintiffs have not pled sufficient facts to state a plausible claim for relief, the court must grant Wilson’s motion to dismiss plaintiff's strict products liability claims. IV. ARGUMENT A. PLAINTIFFS’ FIFTH AND SIXTH CAUSES OF ACTION SHOULD BE DISMISSED BECAUSE PLAINTIFFS INCURRED NO DAMAGE TO EITHER PERSON OR OTHER PROPERTY Even if Plaintiffs’ First Amended Complaint contained anything more than a recitation of the elements for a cause of action, which it does not, this motion must be Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 8 of 13 Page ID #:1363 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 6 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 granted because Plaintiffs have not alleged, nor incurred any damages to their person or to other property. As such, their claims are barred by the economic loss doctrine. Under California law, “where damage consists solely of economic losses, recovery on a theory of products liability is precluded.” Sacramento Regional Transit Dist. v. Grumman Flxible, 158 Cal. App. 3d 289, 293, 204 Cal. Rptr. 736 (1984). Thus, “recovery under the doctrine of strict liability is limited solely to ‘physical harm to person or property.’” Jimenez v. Superior Court, 29 Cal. 4th 473, 482, 127 Cal. Rptr. 2d 614, 58 P.3d 450 (2002) (quoting Seely v. White Motor Co., 63 Cal. 2d 9, 18, 45 Cal. Rptr. 17, 403 P.2d 145 (1965)). “Damages available under strict products liability do not include economic loss, which includes damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits—without any claim of personal injury or damages to other property.” Id. (quotation marks and citations omitted). Indeed, Plaintiffs have alleged, at most, a claim of breach of warranty in contract, as “[t]he law of contractual warranty governs damage to the product itself.” Id. at 483, 127 Cal. Rptr. 2d 614, 58 P.3d 450. Plaintiffs must allege damage to “property other than the product itself” to state a viable products liability claim. Kalitta Air, L.L.C. v. Cent. Texas Airborne Sys., Inc., 315 F. App’x 603, 605 (9th Cir. 2008). In Sacramento Regional Transit, the plaintiff purchased a fleet of busses from defendant. When the plaintiff discovered that a number of busses had cracked fuel tank supports, it sued for damages based on negligence and strict liability. In affirming the trial court’s order sustaining a demurrer, the appellate court held that “plaintiff failed to allege physical injury to its property apart from the manifestation of the defect itself.” Id., 158 Cal. App. 3d at 294, 204 Cal. Rptr. 736. The court further held that “[w]hen the defect and the damage are one and the same, the defect may not be considered to have caused physical injury.” Id. at 294, 204 Cal. Rptr. 736. Because the only damage plaintiff suffered was the cost of repair, it sustained “purely economic damages.” Id. See also, Anthony v. Kelsey–Hayes Co., 25 Cal. App. 3d 442, 446–47, 102 Cal. Rptr. 113 (1972) (Because no personal injury or property damage resulted from a defective wheel Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 9 of 13 Page ID #:1364 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 7 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 which had the potential to break apart, but which had not done so, plaintiffs suffered only a loss of its bargain, and therefore suffered only economic damages). Similarly, in the instant case, Plaintiff has suffered only economic loss. Plaintiff has not alleged that the supposed defect to the product caused any property damage or personal injury other than to the product itself. This conclusion is bolstered by the damages sought by Plaintiffs, who specifically allege they have suffered “economic loss.” (Dkt. 43, ¶ 126). Plaintiffs fail to explain what injury or property damage they allege satisfy the economic loss rule. Plaintiffs’ allegations are not “physical harm to person or property” apart from “the manifestation of the defect itself,” and cannot support a products liability claim. See Sacramento Regional Transit Dist., 158 Cal.App.3d at 294, 204 Cal. Rptr. 736. The damage and the defect are one and the same: an allegedly bent, flattened, and/or cracked bat. Consequently, the Court should dismiss causes of action six and seven in Plaintiffs’ First Amended Complaint. B. PLAINTIFFS’ MANUFACTURING DEFECT CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE THE A BARE ALLEGATION OF A MANUFACTURING DEFECT IS AN INSUFFICIENT LEGAL CONCLUSION A bare allegation that the product “suffered from a ‘design defect,’ as the Plaintiffs have done in this case, is an insufficient legal conclusion” under Twombly and Iqbal. Id. Under a “manufacturing defect” theory, “‘a defective product is one that differs from the manufacturer's intended result or from other ostensibly identical units of the same product line.’” Lucas v. City of Visalia, 726 F.Supp.2d at 1154 (E.D. Ca. 2010)(quoting Barker v. Lull Eng'g Co., 20 Cal. 3d 413, 429, 143 Cal. Rptr. 225, 573 P.2d 443 (1978)). The “manufacturing defect” theory asserts that “a suitable design is in place, but that the manufacturing process has in some way deviated from that design.” In re Coordinated Latex Glove Litig., 99 Cal.App.4th 594, 613, 121 Cal.Rptr.2d 301 (2002). However, plaintiffs should “identify/explain how the [product] either deviated from [defendant's] intended result/design or how the [product] deviated from other seemingly identical [product] models.” Id. at 1155 (citing Barker, 20 Cal. 3d at 429, 143 Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 10 of 13 Page ID #:1365 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 8 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 Cal. Rptr. 225, 573 P.2d 443). In the instant case, Plaintiffs wholly fail to do so. In fact, this case is strikingly similar to In Re Toyota Motor Corp. Unintended Acceleration Marketing, Sales, Practices and Products Liability Litigation, 754 F. Supp. 2d 1208 (C.D. CA 2010), where this Court found a complaint’s allegations of a manufacturing defect warranted dismissal where only bare allegations were offered. The case involved several plaintiffs who were all personally injured due to their cars’ sudden acceleration. The allegations in the complaint in question stated that: “[the] systems and their various components were defectively designed and manufactured in that they were highly susceptible to malfunction caused by various electronic failures, including but not limited to short circuits and electromagnetic interference from electromagnetic sources outside the vehicle.” Id. at 1222. The Toyota complaint further alleged that “the [product], which was being used in a reasonably foreseeable manner, failed to perform as an ordinary consumer would have expected, failed to conform with its manufacturing specifications, failed to contain adequate warnings, and its design was a substantial factor in causing injuries.” Id. The complaint did not offer any allegations of how the product deviated from the manufacturer’s intended design or other product models. Therefore, this Court dismissed the allegations of manufacturing defects. Id. at 1223. Similarly, the Plaintiffs’ First Amended Complaint alleges that: At the time the DeMarini Softball Bats left the manufacture and control of Defendants and were sold, the Softball Bats were defective in design and/or manufacturing in that they had a propensity to bend, flatten, and/or crack during normal and intended use. (Dkt. 43, ¶ 111). What is conspicuously absent from these claims is an identification of what aspect of the bats makes their design and warning defective. Just like In Re Toyota, these bare allegations fall short of either describing how the baseball bats deviated from the intended result/design or how the baseball bats deviated from other seemingly Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 11 of 13 Page ID #:1366 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 9 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 identical baseball bats. Plaintiffs acknowledge Wilson’s warranty which covers these normal conditions for a bat. If the holdings of Twombly and Iqbal have any purpose, it is so that a defendant like Wilson need not speculate or guess as to Plaintiffs allegations of the cause of events. Such bare allegations are insufficient to state a cause of action and Plaintiffs’ fifth cause of action must be dismissed. C. PLAINTIFFS’ STRICT LIABILITY FAILURE TO WARN CAUSE OF ACTION SHOULD BE DISMISSED BECAUSE THE FIRST AMENDED COMPLAINT FAILS TO PROPERLY PLEAD CAUSATION To state a failure to warn claim, plaintiffs must allege, among other things, (1) that defendants failed to warn plaintiffs of the alleged substantial risks, (2) causation, and (3) damages. Altman v. HO Sports Co., 2009 WL 4163512, at *9 (E.D. Cal. Nov. 23, 2009) (citation omitted). “The theory underlying a warning defect cause of action is that the product is dangerous because it lacks adequate warnings or instructions.” Chavez v. Glock, Inc., 207 Cal. App .4th 1283, 1304 (2012) (citing Barker v. Lull Engineering Co., Inc., 20 Cal. 3d 413, 428 (1978)). In the instant case, Plaintiffs’ strict liability failure to warn claim fails because Plaintiffs have failed to adequately plead causation. Plaintiffs do not plausibly allege that “but for” Wilson’s failure to warn, the alleged damages would not have occurred. Plaintiffs’ only alleged damages sound in contract for breach of warranty – nothing alleged relates to an avoidable personal injury. According to the First Amended Complaint: “Had such warnings been provided, Plaintiffs and consumers would have not purchased the product, or at the very least, could have avoided the risk caused by the defective and dangerous product.” (Dkt. 43, ¶ 125). This mere economic injury is a claim for breach of contract – it is not a products liability claim. V. CONCLUSION As this Motion demonstrates, Plaintiffs have failed to state a claim upon which relief can be granted for any strict product liability claims. Plaintiffs fail to allege any Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 12 of 13 Page ID #:1367 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 10 Notice of Motion and Motion to Dismiss Causes of Action Five and Six of Plaintiffs’ First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(B)(2) Case No. 8:15-cv-02131-JLS (JCGx) 36338254v.1 cognizable injury to their persons or to other property, and fail to allege facts other than conclusory and speculative statements that merely recite elements for a cause of action. Because Plaintiffs fail to allege any personal injury or injury to other property, they are barred as a matter of law from recovering under the economic loss doctrine, and any “product liability” claims they wish to pursue must be done through contract, and not in tort. For the foregoing reasons, Plaintiff’s strict product liability claims, the Fifth Cause of Action and the Sixth Cause of Action, should be dismissed and this Motion should be granted. DATED: December 21, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: / s / Eric R. McDonough Eric R. McDonough Attorneys for Defendant WILSON SPORTING GOODS CO. Case 8:15-cv-02131-JLS-JCG Document 59 Filed 12/21/16 Page 13 of 13 Page ID #:1368 HIROYAKI ODA, a California resident; COREY ROTH, a California resident, individually, and on behalf of themselves and all others similarly situated, Plaintiffs, vs. DeMARINI SPORTS, INC.; DeMARINI SPORTS GROUP LIMITED PARTNERSHIP; WILSON SPORTING GOODS CO.; VARI-WALL TUBE SPECIALISTS, INC.; JACKSON TUBE SERVICE, INC., and DOES 1 to 10, inclusive, Defendants. Case No. 8:15-cv-02131-JLS-JCG [Assigned to Hon. Josephine L. Staton Courtroom 10-A) CLASS ACTION DECLARATION OF JEFFERY A. KEY IN SUPPORT OF DEFENDANT WILSON SPORTING GOODS CO.'S MOTION TO DISMISS CAUSES OF ACTION FIVE AND SIX OF PLAINTIFFS' FIRST AMENDED COMPLAINT Date: Time: Courtroom: January 20, 2017 2:30 p.m. 10-A SEYFARTH SHAW LLP Eric R. McDonough emcdonough@seyfarth.com One Century Plaza 2029 Century Park East, Suite 3500 Los Angeles, California 90067 Telephone: 310-201-5200 Facsimile: 310-282-6900 SEYFARTH SHAW LLP Michael R. Levinson (Admitted Pro Hac Vice) mlevinson@seyfarth.com Louis Chronowski (Admitted Pro Hac Vice) lchronowski@seyfarth.corn 131 South Dearborn Street, Suite 2400 Chicago, IL 60603 Telephone: 312-460-5868 KEY & ASSOCIATES JEFFERY A. KEY (Pro Hac Vice) 321 N. Clark Street, Suite 500 Chicago, IL 60654 Telephone: 312-560-2148 Facsimile: 312-957-1236 Attorneys for Defendant WILSON SPORTING GOODS CO. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION 1 Declaration of Jeffery A. Key in Support of Defendant Wilson Sporting Goods Co.'s Motion to Dismiss Causes of Action Five and Six of Plaintiffs' First Amended Complaint Case No. 8:15-cv-02131-JLS (JCGx) 36330571v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:15-cv-02131-JLS-JCG Document 59-1 Filed 12/21/16 Page 1 of 3 Page ID #:1369 I, Jeffery Key, hereby declare and state as follows: 1. I am an attorney at the law firm of Key & Associates, counsel for Defendant Wilson Sporting Goods Co. ("Wilson"), in the above-captioned lawsuit. I submit this declaration in support of Wilson's Motion to dismiss Claims Five and Six of Plaintiffs' First Amended Complaint. 2. Pursuant to Local Rule 7-3 on December 7, 2016 (more than five days prior to the last day for filing the motion which at the time was December 16, 2016), I, as one of the attorneys for Wilson, contacted the law firms representing Plaintiffs in an attempt to schedule a meet and confer regarding Wilson's intention to move to dismiss the Amended Complaint in part. 3. On December 8, 2016, one of Plaintiffs' law firms indicated it was available to confer, but the other law firm would not make anyone available until at least the following week, or less than 5 days before the Motion was due. At this point, the previously available firm now declined to confer by the December 9 deadline. 4. As one of the attorneys for Wilson, I then provided a written description of the motion to dismiss, and continued trying to telephone Plaintiffs' counsel to confer. Plaintiffs' counsel would not speak on the phone, and refused to confer unless a specific attorney from two separate fiiiiis could both be on the call. A true and correct copy of the parties' email chain is attached hereto as Exhibit A. 5. On the last day to confer, after Wilson indicated it would need to simply infoiiii the Court of its efforts to date to confer, Plaintiffs granted a four business day extension for Wilson's motion date and agreed to confer. The parties conferred on December 15, 2016, but Plaintiffs declined to take action regarding their defective Amended Complaint Counts Five and Six (for strict product liability). 6. Plaintiffs did agree, however, to voluntarily dismiss two named defendants that are non-existent entities: DeMarini Sports, Inc. and DeMarini Sports Group Limited Partnership. Public records show the entities do not exist, and have not existed for fifteen 2 Declaration of Jeffery A. Key in Support of Defendant Wilson Sporting Goods Co.'s Motion to Dismiss Causes of Action Five and Six of Plaintiffs' First Amended Com_plaint Case No. 8:15-cv-02131-JLS (J-CGx) 36330571v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:15-cv-02131-JLS-JCG Document 59-1 Filed 12/21/16 Page 2 of 3 Page ID #:1370 or more years. No action has ever formally commenced against them. I declare under penalty of perjury under the laws of Illinois and the laws of the United States that the foregoing is true and correct. Executed this 20th day of December, 2016, at Chicago, Illinois. 3 Declaration of Jeffery A. Key in Support of Defendant Wilson Sporting Goods Co.'s Motion to Dismiss Causes of Action Five and Six of Plaintiffs' First Amended Complaint Case No. 8:15-cv-02131-JLS (JCGx) 36330571v.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 8:15-cv-02131-JLS-JCG Document 59-1 Filed 12/21/16 Page 3 of 3 Page ID #:1371 EXHIBIT "A" EXHIBIT "A" Case 8:15-cv-02131-JLS-JCG Document 59-2 Filed 12/21/16 Page 1 of 5 Page ID #:1372 Jeffery Key From: Jeffery Key Sent: Thursday, December 8, 2016 4:41 PM To: 'Jesse Bablove'; 'Jerusalem Beligan'; 'Javier Ruiz.; 'Jillian Schragen' Cc: 'emcdonough@seyfarth.com'; 'Ichronowski@seyfarth.com' Subject: RE: Oda v. Wilson, et al. (1300.003) Jesse: Under Rule 15(a)(3) Wilson has 14 days, or until next Friday, December 16, to move or plead. The Court did not expand that to 21 days. If you will not call, please just say so. Thanks Jeff KEY & ASSOCIATES LAW OFFICES 321 N. CLARK STREET, SUITE, 500 CHICAGO, ILLINOIS 60654 PHONE 312.560.2148 THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL TO WHOM IT IS ADRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. From: Jesse Bablove [mailto:jbablove@dkblawyers.com] Sent: Thursday, December 8, 2016 2:58 PM To: Jeffery Key ; 'Jerusalem Beligan' ; 'Javier Ruiz' ; 'Jillian Schragen' Cc: emcdonough@seyfarth.com; Ichronowski@seyfarth.com Subject: RE: Oda v. Wilson, et al. (1300.003) Jeff: my apologies for missing your call I am out of the office having lunch. Per the Court's new scheduling order and local rules since the FAC was served on December 1st I believe defendants have 21 days to file a response which would encompass an answer or motion to dismiss. Therefore we can meet and confer up to and including December 15th and still fulfill the applicable local rules. Also thank you for providing the substance of your contemplated motion. We will research and discuss our position during next week's meet and confer. Please provide dates and times next week so that we can schedule a time when all handling attorneys are available to attend. Best, Jesse Sent from my Verizon 4G LTE smartphone 1 Case 8:15-cv-02131-JLS-JCG Document 59-2 Filed 12/21/16 Page 2 of 5 Page ID #:1373 Original message From: Jeffery Key Date: 12/8/16 12:08 PM (GMT-08:00) To: Jesse Bablove , 'Jerusalem Beligan , 'Javier Ruiz' , 'Jillian Schragen' Cc: emcdonough@seyfarth.com, lchronowski@seyfarth.com Subject: RE: Oda v. Wilson, et al. (1300.003) Jesse: I just attempted to reach you by phone again, but your phone system only allows messages in the general voicemail box, and your extension had no answer (after you stated you were available all day today). As I explained in my previous voice message this morning, Wilson intends to file a motion to dismiss, which is due next Friday. The local rule provides our meet and confer must be within 5 days for a rule 12(b) motion, so a discussion next week is too late, which is something of which you and your co-counsel are fully aware. Respectfully, please be advised that if you refuse to discuss this matter before the end of this week, Wilson will simply inform the Court of the efforts it has made to confer, and of your responses. As to your request for more specific information, Plaintiffs have failed to state a claim for strict products liability (Fifth and Sixth Causes of Action). Plaintiffs allege that they purchased bats that failed in use and they were denied a requested full purchase refund. There is no allegation of personal injury, nor any allegation that the bats damaged other property. Accordingly, under well settled California law, no claim is stated. In addition, Wilson has previously provided in discovery the public documents proving that no such entities as "DeMarini Sports, Inc." or "DeMarini Sports Group Limited Partnership" exists, nor have any such entities existed at any remotely relevant time for the Amended Complaint (they were disbanded over fifteen years ago). Yet, Plaintiffs once again name those non-entities as defendants. They should be dropped from the case. No service has ever been attempted regarding them, and listing them cannot be for a legitimate purpose. Accordingly, refusal to drop them would indicate they are not listed in good faith. You have many counsel from Jerusalem's office listed, and certainly if that firm is required for the meet and confer call, someone can be available. I remain available today and tomorrow for a discussion. Jeff KEY & ASSOCIATES LAW OFFICES 321 N. CLARK STREET, SUITE 500 CHICAGO, ILLINOIS 60654 PHONE 312.560.2148 THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL TO WHOM IT IS ADRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. From: Jesse Bablove [mailto:ibablove@dkblawvers.com] Sent: Thursday, December 8, 2016 1:43 PM To: Jeffery Key ; Jerusalem Beligan Cc: emcdonough@sevfarth.com; lchronowski@seyfarth.com; Jillian Schragen ; Javier Ruiz Subject: RE: Oda v. Wilson, et al. (1300.003) 2 Case 8:15-cv-02131-JLS-JCG Document 59-2 Filed 12/21/16 Page 3 of 5 Page ID #:1374 Good Morning Jeff — I just received your voicemail. I am happy to meet and confer pursuant to LR 7.3, but we must do so when my co-counsel is available. Please provide dates next week so we can schedule a time when everyone is available to attend. In order to get the ball rolling, pursuant to LR 7.3 please advise us in writing what causes of action you intend to move to dismiss and the case authority supporting your position. That will help us understand the substance of the contemplated motion, and encourage resolution without the unnecessary involvement of the court. We look forward to hearing from you when your time permits. Best, Jesse From: Jerusalem Beligan [mailto:ibeligan@bisnarchase.com] Sent: Wednesday, December 7, 2016 5:36 PM To: Jesse Bablove Cc: Jeffery Key ; emcdonough@seyfarth.com; Ichronowski@seyfarth.com; Jillian Schragen ; Javier Ruiz Subject: Re: Oda v. Wilson, et al. (1300.003) Bi SNAR ICI ASE F' Trust Passion Restilts Jeff, I'm out of the office and this week is bad for me. Please give me some dates and time next week during which you are available to meet and confer. Thanks Sent from my iPhone On Dec 7, 2016, at 5:16 PM, Jesse Bablove wrote: Jeff: I am available tomorrow pretty much the whole day. Jerusalem are you available to discuss? If so what time works best for you? Best, Jesse From: Jeffery Key [mailto:jakey@key-and-associates.com] Sent: Wednesday, December 7, 2016 2:53 PM To: Jesse Bablove ; 'Jerusalem Beligan' Cc: emcdonough@sevfarth.com; Ichronowski@seyfarth.com Subject: Oda v. Wilson, et al. Jesse / Jerusalem: I would like to arrange a call with you tomorrow (Thursday, 12-8) to discuss Wilson's response to the Amended Complaint. We are going to file a motion to dismiss (in part), and I would like to see if that can be avoided. 3 Case 8:15-cv-02131-JLS-JCG Document 59-2 Filed 12/21/16 Page 4 of 5 Page ID #:1375 Pew Reitew Med L•r•,:. -.11110.Arkl 04TriaiAtivola,14.-", lot ./.0)rm 1.0.k \ otic. v.c.r I Nr. ;OS ISICITIS Please let me know a time that would be convenient for you. Thanks Jeff KEY & ASSOCIATES LAW OFFICES 321 N. CLARK STREET, SUITE 500 CHICAGO, ILLINOIS 60654 PHONE 312.560.2148 THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL TO WHOM IT IS ADRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. Sincerely, Jerusalem Beligan Attorney 1301 Dove Street, Suite 120 I Newport Beach, CA 9266o www.BestAttorney.com 800.956.0123 I 949.752.2999 1949.752.2777 fax PRIVILEGED/CONFIDENTIAL COMMUNICATION: This email and all attachments are intended SOLELY for the recipients as identified in the "To," "CC" and "BCC" lines of this email. If you are not one of the identified intended recipients, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. If you are not the one of the identified intended recipients, any dissemination, distribution, storing, sharing, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by telephone and destroy all copies of this message. No waiver of any privilege or work product protection is intended by the accidental distribution or disclosure of this message. NOTICE: NO DUTIES ARE ASSUMED, INTENDED, OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract, this firm does NOT represent you as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. 4 Case 8:15-cv-02131-JLS-JCG Document 59-2 Filed 12/21/16 Page 5 of 5 Page ID #:1376
