Paul Stockinger et al v. Toyota Motor Sales, U.S.A., Inc

NOTICE OF MOTION AND MOTION to Dismiss Plaintiffs' First Amended Complaint

C.D. Cal.April 17, 2017

DB1/ 91790740.1 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES MORGAN, LEWIS & BOCKIUS LLP David L. Schrader, Bar No. 149638 david.schrader@morganlewis.com Esther K. Ro, Bar No. 252203 esther.ro@morganlewis.com Jahmy S. Graham, Bar No. 300880 jahmy.graham@morganlewis.com 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: +1.213.612.2500 Fax: +1.213.612.2501 Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PAUL STOCKINGER, ELIZABETH STOCKINGER, GAILYN KENNEDY, BASUDEB DEY, BRENDA FLINN, ELIEZER CASPER, and YVETTE ALLEY on behalf of themselves and all others similarly situated, Plaintiffs, vs. TOYOTA MOTOR SALES, U.S.A., INC., a California corporation, Defendant. Case No. 2:17-cv-00035-VAP (KSx) NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT [Memorandum of Points and Authorities; Request for Judicial Notice; Declarations of Barry M. Hare and David L. Schrader filed concurrently herewith] [[Proposed] Order lodged concurrently herewith] Date: June 5, 2017 Time: 2:00 p.m. Judge: Hon. Virginia A. Phillips Ctrm.: 8A, 8th Floor Complaint filed: January 3, 2017 Case 2:17-cv-00035-VAP-KS Document 39 Filed 04/17/17 Page 1 of 4 Page ID #:551 DB1/ 91790740.1 1 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES NOTICE OF MOTION AND MOTION TO DISMISS TO THE COURT AND TO ALL PARTIES AND COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on June 5, 2017 at 2:00 p.m., or as soon thereafter as this matter may be heard in Courtroom 8A of the Central District of California, located at 350 West 1st Street, Los Angeles, California 90012, the Honorable Virginia A. Phillips presiding, Defendant Toyota Motor Sales, U.S.A., Inc. (“Toyota”) will and hereby does move the Court for an order dismissing Plaintiffs Paul Stockinger, Elizabeth Stockinger, Gailyn Kennedy, Basudeb Dey, Brenda Flinn, Eliezer Casper, and Yvette Alley’s (collectively, “Plaintiffs”) First Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) and 9(b). Toyota moves to dismiss the entirety of Plaintiffs’ FAC with prejudice for the following reasons: First, Plaintiffs fail to plausibly allege a defect with the heating, ventilation, and air conditioning (“HVAC”) systems in their six Toyota and Lexus vehicles. The viability of all of Plaintiffs’ claims depends on the existence of the alleged defect in their vehicles. Plaintiffs’ allegations on “information and belief” fall far short of pleading such a defect. Second, Plaintiffs fail to plead any breach of warranty claim. Plaintiffs’ express warranty claim fails, because Plaintiffs do not allege that they presented their vehicles for repair during the warranty period or that Toyota failed to repair their vehicles during that period. Moreover, Plaintiffs’ written warranties exclude design defects like those alleged in this case; the written warranties are limited to defects in “materials and/or workmanship”-not a design. Likewise, Plaintiffs fail to state an implied warranty of merchantability claim, because they do not and cannot allege any facts to support a finding that their vehicles are not fit for their ordinary purpose of providing transportation. Failure to plead an underlying breach Case 2:17-cv-00035-VAP-KS Document 39 Filed 04/17/17 Page 2 of 4 Page ID #:552 DB1/ 91790740.1 2 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES of warranty claim, in turn, requires dismissal of the Magnuson-Moss Warranty Act claims and the California Song-Beverly Warranty Act claim. Third, Plaintiffs’ fraud-based claims are all subject to the heightened pleading standard under Rule 9(b) and fail for several reasons. Plaintiffs do not identify any material misrepresentation made by Toyota about their vehicles. Nor do Plaintiffs identify a material, factual omission that Toyota had a duty to disclose. To the contrary, the evidence properly before this Court demonstrates that Toyota, in fact, discloses the possibility of HVAC odor in its owner’s manuals. Further, Plaintiffs do not plausibly allege any facts supporting the existence of an “unreasonable safety hazard”-which the Ninth Circuit recently confirmed is required to establish a duty to disclose an alleged product defect under various state consumer protection statutes. In addition, while Plaintiffs try to invoke an “exclusive” knowledge exception to the general rule that there is no common law duty to disclose, several state laws (under which Plaintiffs’ claims arise) do not recognize this exception, and Plaintiffs’ allegations show that Toyota did not have “exclusive” knowledge of any supposed defect in the HVAC systems at the time Plaintiffs purchased their vehicles. Fourth, Plaintiffs’ negligent misrepresentation claims are barred by the economic loss doctrine, because Plaintiffs seek only economic losses and do not allege any personal injury or property damage. Fifth, Plaintiffs’ claims for equitable relief fail because Plaintiffs have brought claims that may entitle them to an adequate legal remedy, and the factual bases for their equitable claims are duplicative of their legal claims. Sixth, Plaintiff Kennedy’s and Plaintiff Alley’s claims are barred by the Virginia and Colorado statutes of limitation, respectively. Seventh, Plaintiffs have no standing to pursue their claims on behalf of a proposed class encompassing more than 200 different makes and models of vehicles that Plaintiffs did not purchase. Case 2:17-cv-00035-VAP-KS Document 39 Filed 04/17/17 Page 3 of 4 Page ID #:553 DB1/ 91790740.1 3 NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES This motion is made following the conference of counsel pursuant to L.R. 7-3 that took place on April 6, 2017. This motion is based on this Notice of Motion and Motion to Dismiss, the accompanying Memorandum of Points and Authorities, Toyota’s Request for Judicial Notice, the Declaration of Barry M. Hare, the Declaration of David L. Schrader, and all other matters that may be judicially noticed, as well as the files and records in this case, and any oral or documentary evidence that may be adduced at the hearing on this matter. Dated: April 17, 2017 MORGAN, LEWIS & BOCKIUS LLP David L. Schrader Esther K. Ro Jahmy S. Graham By /s/ David L. Schrader David L. Schrader Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc. Case 2:17-cv-00035-VAP-KS Document 39 Filed 04/17/17 Page 4 of 4 Page ID #:554 DB1/ 91790023.5 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES MORGAN, LEWIS & BOCKIUS LLP David L. Schrader, Bar No. 149638 david.schrader@morganlewis.com Esther K. Ro, Bar No. 252203 esther.ro@morganlewis.com Jahmy S. Graham, Bar No. 300880 jahmy.graham@morganlewis.com 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: +1.213.612.2500 Fax: +1.213.612.2501 Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PAUL STOCKINGER, ELIZABETH STOCKINGER, GAILYN KENNEDY, BASUDEB DEY, BRENDA FLINN, ELIEZER CASPER, and YVETTE ALLEY on behalf of themselves and all others similarly situated, Plaintiffs, vs. TOYOTA MOTOR SALES, U.S.A., INC., a California corporation, Defendant. Case No. 2:17-cv-00035-VAP (KSx) DEFENDANT TOYOTA MOTOR SALES, U.S.A., INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT [Notice of Motion and Motion; Declaration of David L. Schrader and Barry M. Hare filed concurrently herewith] [[Proposed] Order lodged concurrently herewith] Date: June 5, 2017 Time: 2:00 p.m. Judge: Hon. Virginia A. Phillips Ctrm: 8A, 8th Floor Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 1 of 43 Page ID #:555 TABLE OF CONTENTS Page i MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES I. INTRODUCTION ....................................................................................... 1 II. RELEVANT BACKGROUND .................................................................. 3 A. Summary Of Plaintiffs’ Allegations ..................................................... 3 B. Plaintiffs’ FAC Shows That HVAC Odor May Be Caused By Multiple Factors Unrelated To Any Alleged Defect ............................ 5 C. The Owner’s Manuals Disclose The Possibility Of HVAC Odor ........ 6 D. There Are No Facts To Show Any Mold Or Safety Problem With The Named Plaintiffs’ Vehicles ................................................... 6 III. LEGAL STANDARDS ............................................................................... 7 IV. ARGUMENT .............................................................................................. 8 A. All Claims Fail Because Plaintiffs Do Not Plausibly Allege Any Facts Establishing A Defect That Caused Odors Or Mold in Their Vehicles ....................................................................................... 8 1. Plaintiffs fail to plead facts that their vehicles retained any water or had any mold growth caused by the alleged defect ........................................................................................... 9 2. Plaintiffs fail to plead facts connecting the alleged defect to any odors in their vehicles .................................................... 10 B. Plaintiffs’ Breach Of Warranty Claims Fail For Additional Reasons ............................................................................................... 12 1. Plaintiffs’ breach of express warranty claims should be dismissed for multiple reasons ................................................. 12 2. Plaintiffs’ breach of implied warranty claims fail, too ............. 14 3. Plaintiffs’ MMWA and California statutory warranty claims fail as a matter of law .................................................... 15 C. Plaintiffs’ Fraud-Based Claims Also Fail For Other Independent Reasons ............................................................................................... 16 1. Plaintiffs have not alleged a misrepresentation by Toyota....... 16 2. Plaintiffs’ omission-based theory of liability is fatally flawed for several independent reasons .................................... 17 a. Plaintiffs have not identified a material omission .......... 17 b. Plaintiffs’ claims under state consumer protection laws also fail because they cannot allege a duty to disclose absent an “unreasonable safety hazard.” .......... 18 c. Plaintiffs also fail to allege a duty to disclose with respect to their common law nondisclosure claims ....... 20 (1) Florida and Colorado laws do not recognize an “exclusive” knowledge exception ................... 21 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 2 of 43 Page ID #:556 TABLE OF CONTENTS (continued) Page ii MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES (2) The remaining Plaintiffs fail to satisfy the elements of the “exclusive” knowledge exception under the laws of California, Kansas, Virginia, and Washington ...................... 22 3. The economic loss rule independently bars Plaintiffs’ negligent misrepresentation claims .......................................... 25 D. Plaintiffs’ Equitable Claims Fail Because They Have Not Established That There Is No Adequate Remedy at Law Available ............................................................................................. 26 E. Plaintiffs Kennedy and Alley’s Claims Are Barred By The Statutes of Limitation .......................................................................... 27 F. Plaintiffs Do Not Have Standing To Pursue Claims Regarding Vehicles They Did Not Purchase ........................................................ 28 V. CONCLUSION ......................................................................................... 30 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 3 of 43 Page ID #:557 TABLE OF AUTHORITIES Page(s) iii MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES CASES Alejandre v. Bull, 159 Wash. 2d 674 (2007) .................................................................................... 25 Alpine Bank v. Hubbell, 555 F.3d 1097 (10th Cir. 2009) ..................................................................... 21, 22 Am. Honda Motor Co. v. Sup. Ct., 199 Cal. App. 4th 1367 (2011) ............................................................................ 22 Am. Suzuki Motor Corp. v. Sup. Ct., 37 Cal. App. 4th 1291 (1995) .............................................................................. 14 Aprigliano v. Am. Honda Motor Co., 979 F. Supp. 2d 1331 (S.D. Fla. 2013) ................................................................ 25 Arista Records, LLC v. Doe, 604 F.3d 110 (2d Cir. 2010) .................................................................................. 7 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................... passim Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir. 2015) ............................................................................... 27 Barakezyan v. BMW of N. Am., LLC, No. CV1600173SJOGJSX, 2016 WL 2840803 (C.D. Cal. Apr. 7, 2016) ................................................................................................................ 7, 18 BCJJ, LLC v. LeFevre, No. 8:09-CV-551-T-17EAJ, 2011 WL 989230 (M.D. Fla. Mar. 21, 2011) .................................................................................................................... 21 Beard Plumbing and Heating, Inc. v. Thompson Plastics, Inc., 254 Va. 240 (Va. 1997) ....................................................................................... 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..................................................................................... passim Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 4 of 43 Page ID #:558 TABLE OF AUTHORITIES (continued) Page(s) iv MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Birdsong v. Apple, Inc., 590 F.3d 955 (9th Cir. 2009) ............................................................................... 15 Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917 (9th Cir. 2013) ................................................................................. 9 Branin v. TMC Enterprises, LLC, 832 F. Supp. 2d 646 (W.D. Va. 2011) ................................................................. 25 Bros. v. Hewlett-Packard Co., No. C-06-02254, 2007 WL 485979 (N.D. Cal. Feb. 12, 2007) .......................... 13 Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881 (N.D. Cal. 2012)................................................................. 29 Brown v. Transurban USA. Inc., 144 F. Supp. 3d 809 (E.D. Va. 2015) .................................................................. 27 BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004) ...................................................................................... 25 Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) ................... 29 Chandler v. Wash. Toll Bridge Authority, 17 Wash. 2d 591 (1943) ...................................................................................... 27 Clemens v. DaimlerChrysler Corp., 534 F. 3d 1017 (9th Cir. Cal. 2008) .................................................................... 15 Coe v. Philips Oral Healthcare Inc., No. C13-518-MJP, 2014 WL 722501 (W.D. Wash. Feb. 24, 2014) .................. 12 Colonial Imports, Inc. v. Carlton Northwest, Inc., 121 Wash. 2d 726 (Wash. 1993) ......................................................................... 22 Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736 (Colo. 1991) .................................................................................. 13 David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309 (S.D. Fla. 2009) ................................................................ 13 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 5 of 43 Page ID #:559 TABLE OF AUTHORITIES (continued) Page(s) v MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Decoteau v. FCA US LLC, No. 215CV00020MCEEFB, 2015 WL 6951296 (E.D. Cal. Nov. 10, 2015) .................................................................................................................... 11 Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696 (Fla. Dist. Ct. App. 2008) ........................................................... 27 Durkee v. Ford Motor Co., No. C 14-0617 PJH, 2014 WL 4352184 (N.D. Cal. Sept. 2, 2014) .................... 26 Eisen v. Porsche Cars N. Am., Inc., No. CV 11-9405 CAS FEMX, 2012 WL 841019 (C.D. Cal. Feb. 22, 2012) .............................................................................................................. 17 Enomoto v. Space Adventures, Ltd., 624 F. Supp. 2d 443 (E.D. Va. 2009) .................................................................. 16 Farren v. Select Portfolio Servicing, Inc., No. 2:16-CV-01077-JAM-DB, 2016 WL 6896044 (E.D. Cal. Nov. 23, 2016) .............................................................................................................. 10 Fisher v. Honda N. Am., No. LA CV13-09285 JAK, 2014 WL 2808188 (C.D. Cal. June 12, 2014) .................................................................................................................... 23 Fitzgerald v. Bosco Credit, LLC, No. 16-CV-01473-MEJ, 2016 WL 5791253 (N.D. Cal. Oct. 4, 2016) ...................................................................................................................... 9 Francis v. Mead Johnson & Co., No. 1:10-CV-00701-JLK, 2010 WL 5313540 (D. Colo. Dec. 17, 2010) .................................................................................................................... 26 Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992) .............................................................................................. 26 Gertz v. Toyota Motor Corp., No. CV 10-1089, 2011 WL 3681647 (C.D. Cal. Aug. 22, 2011) ....................... 13 Granfield v. NVIDIA Corp., No. C 11-05403JW, 2012 WL 2847575 (N.D. Cal. July 11, 2012) .................... 29 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 6 of 43 Page ID #:560 TABLE OF AUTHORITIES (continued) Page(s) vi MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Grodzitsky v. Am. Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 690822 (C.D. Cal. Feb. 19, 2013) .............................................................................................................. 24 Guerrero v. Target Corp., 889 F. Supp. 2d 1348 (S.D. Fla. 2012) ................................................................ 16 Hangman Ridge Training Stables, Inc., 105 Wash. 2d 778 (1986) .................................................................................... 16 Hass v. Citizens of Humanity, LLC, No. 14-CV-1404 JLS (WVG), 2016 WL 7097870 (S.D. Cal. Dec. 6, 2016) ................................................................................................................ 29 Herremans v. BMW of N. Am., LLC, No. CV 14-02363 MMM PJWX, 2014 WL 5017843 (C.D. Cal. Oct. 3, 2014) ........................................................................................................ 24 Herron v. Best Buy Co. Inc., 924 F. Supp. 2d 1161 (E.D. Cal. 2013) ......................................................... 22, 24 In re 5-hour ENERGY Mktg. & Sales Practices Litig., No. 13-2438 PSG, 2017 WL 385042 (C.D. Cal. Jan. 24, 2017) ......................... 28 In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 754 F. Supp. 2d 1145 (C.D. Cal. 2010) ......................................................... 13, 27 Indem. Ins. Co. v. Am. Aviation, Inc., 891 So. 2d 532 (Fla. 2004) .................................................................................. 15 Int’l Petroleum Serv., Inc. v. S & N Well Serv., Inc., 230 Kan. 452 (1982) ............................................................................................ 14 Interbank Investments, LLC v. Eagle River Water and Sanitation Distr., 77 P.3d 814 (Colo. App. 2003)............................................................................ 27 Johns v. Bayer Corp., No. 09CV1935DMSJMA, 2010 WL 476688 (S.D. Cal. Feb. 9, 2010) .................................................................................................................... 29 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 7 of 43 Page ID #:561 TABLE OF AUTHORITIES (continued) Page(s) vii MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ......................................................................... 7, 16 Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071 (D. Kan. 2004) ................................................................. 25 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ............................................................................... 8 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) ....................................................................................... 26 Licul v. Volkswagen Grp. of Am., Inc., No. 13-61686-CIV, 2013 WL 6328734 (S.D. Fla. Dec. 5, 2013) ....................... 26 Lowe v. Mercedes Benz of N. Am., 103 F.3d 118, 1996 WL 694433 (4th Cir. Dec. 5, 1996) .................................... 14 Maloney v. Indymac Mortg. Servs., No. CV 13-04781 DDP, 2014 WL 6453777 (C.D. Cal. Nov. 17, 2014) .................................................................................................................... 27 Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 WL 1743381 (N.D. Cal. Apr. 16, 2015) .................................................................................................................... 18 Marriott Int’l, Inc. v. Am. Bridge Bah., Ltd., 193 So. 3d 902 (Fla. Dist. Ct. App. 2015) ........................................................... 21 Medicinova, Inc. v. Genzyme Corp., No. 14-CV-2513L KSC, 2015 WL 5007827 (S.D. Cal. Aug. 19, 2015) ...................................................................................................................... 9 Noell Crane Sys. GmbH v. Noell Crane & Serv., 677 F. Supp. 2d 852 (E.D. Va. 2009) .................................................................. 22 Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964 (9th Cir. 2009) .................................................................... 17 Plastic Packaging Corp. v. Sun Chem. Corp., 136 F. Supp. 2d 1201 (D. Kan. 2001) ........................................................... 21, 22 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 8 of 43 Page ID #:562 TABLE OF AUTHORITIES (continued) Page(s) viii MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Polygon Northwest Co. LLC v. Louisiana-Pacific Corp., No. C11-620 MJP, 2012 WL 2504873 (W.D. Wash. June 28, 2012)................. 24 Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142 (Colo. 2003) .................................................................................... 17 Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095 (N.D. Cal. May 31, 2011) ........................ 26 Robinson Helicopter Corp. v. Dana Corp., 34 Cal. 4th 979 (2005) ......................................................................................... 25 Seattle Prof’l Eng’g Employees Ass’n v. Boeing Co., 139 Wash. 2d 824 (2000) .................................................................................... 26 Seely v. White Motor Co., 63 Cal. 2d 9 (1965) .............................................................................................. 25 Shafer, Kline & Warren, Inc. v. The Allen Grp.-Kansas City, LLC, No. 13-2472-JAR-TJJ, 2014 WL 1974525 (D. Kan. May 15, 2014) ........... 26, 27 Sharma v. BMW of N. Am., LLC, No. C-13-2274 MMC, 2014 WL 2795512 (N.D. Cal. June 19, 2014) .................................................................................................................... 25 Somers v. Apple, Inc., 729 F.3d 953 (9th Cir. 2013) ............................................................................... 12 Sonner v. Schwabe N. Am., Inc., No. EDCV151358VAPSPX, 2017 WL 474106 (C.D. Cal. Feb. 2, 2017) (Phillips, J.) ............................................................................................... 29 Soo Park v. Thompson, 851 F.3d 910 (9th Cir. 2017) ........................................................................... 7, 10 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ................................................................................. 8 Stickrath v. Globalstar, Inc., No. C07-1941 TEH, 2008 WL 344209 (N.D. Cal. Feb. 6, 2008) ....................... 25 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 9 of 43 Page ID #:563 TABLE OF AUTHORITIES (continued) Page(s) ix MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962 (C.D. Cal. 2014) ........................................................... 13, 14 Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wash. App. 39 (1976) .................................................................................... 14 Tex. Enters., Inc. v. Brockway Standard, Inc., 149 Wash. 2d 204 (2003) .................................................................................... 15 Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla. 2013) .................................................................................. 15 TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878 (Fla. Dist. Ct. App. 2000) ........................................................... 21 Troup v. Toyota Motor Corp., 545 F. App’x 668 (9th Cir. 2013) ........................................................................ 14 Van Dinter v. Orr, 157 Wash. 2d 329 ................................................................................................ 21 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................... 7 Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689 (9th Cir. 2009) ................................................................................. 7 White v. Potocska, 589 F. Supp. 2d 631 (E.D. Va. 2008) .................................................................. 21 Williams v. Yamaha Motor Co., 851 F.3d 1015, No. 15-55924, 2017 WL 1101095 (9th Cir. March 24, 2017) .................................................................................................. 16, 19, 20 Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134 (N.D. Cal. 2013)............................................................... 30 Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 2012) ................................................................. 19, 21, 22 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 10 of 43 Page ID #:564 TABLE OF AUTHORITIES (continued) Page(s) x MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Wolph v. Acer Am. Corp., No. C 09-01314 JSW, 2009 WL 2969467 (N.D. Cal. Sept. 14, 2009) .................................................................................................................... 24 Yagman v. General Motors Co., No. CV-14-4696-MWF, 2014 WL 4177295 (C.D. Cal. Aug. 22, 2014) .............................................................................................................. 10, 11 Zapata Fonseca v. Goya Foods, Inc., No. 16-CV-02559-LHK, 2016 WL 4698942 (N.D. Cal. Sept. 8, 2016) .................................................................................................................... 27 STATUTES 15 U.S.C. § 2310(a) .................................................................................................. 15 15 U.S.C. § 2310(a)(1) ............................................................................................. 15 15 U.S.C. § 2310(a)(3)(C)(ii) ................................................................................... 15 California Consumer Legal Remedies Act ................................................... 16, 19, 26 California Song-Beverly Warranty Act ................................................................ 2, 15 California Unfair Competition Law ............................................................. 16, 19, 26 Colo. Rev. Stat. Ann. § 6-1-115 ............................................................................... 28 Colo. Rev. Stat. Ann. § 13-80-101 ........................................................................... 28 Colorado Consumer Protection Act .............................................................. 16, 17, 28 Fla. Stat. Ann. § 672.314 .......................................................................................... 14 Florida Deceptive & Unfair Trade Practices Act ......................................... 16, 17, 19 Kan. Stat. Ann. § 50-626(a)-(b) ............................................................................... 16 Kansas Consumer Protection Act ............................................................................. 16 Magnuson-Moss Warranty Act ............................................................................ 2, 15 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 11 of 43 Page ID #:565 TABLE OF AUTHORITIES (continued) Page(s) xi MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Va. Code Ann. § 8.2-725(1) ..................................................................................... 28 Virginia Consumer Protection Act ..................................................................... 16, 19 Washington Consumer Protection Act ............................................................... 16, 19 OTHER AUTHORITIES Fed. R. Civ. P. 8 .......................................................................................................... 9 Fed. R. Civ. P. 9(b) ....................................................................................... 2, 7, 9, 16 Fed. R. Civ. P. 12(b)(6) .............................................................................................. 7 Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1224 (3d ed. 2012) ............................. 9 Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 12 of 43 Page ID #:566 DB1/ 91790023.5 1 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES I. INTRODUCTION The crux of Plaintiffs’ complaint is that the heating, ventilation, and air conditioning (“HVAC”) systems in their six Toyota and Lexus vehicles are somehow defective. Plaintiffs hypothesize that the HVAC systems in their vehicles allow for the accumulation of moisture, which, they claim, causes the HVAC systems to “emit noxious and foul odors and/or pose an unavoidable safety hazard from mold growth.” Plaintiffs allege no facts, however, to show that their HVAC systems contain any accumulated water or mold growth or that any HVAC odor was caused by such moisture or mold growth, as opposed to other common causes for odor in vehicles. Despite alleging no facts to support an alleged defect in their own vehicles, Plaintiffs proceed to assert, “on information and belief,” that the HVAC systems-in more than 200 different Toyota and Lexus model year vehicles spanning more than a decade-contain the same supposed defect. The viability of all of Plaintiffs’ claims depends on the existence of the alleged odor-causing and mold-causing defect in their vehicles. Plaintiffs’ conclusory allegations fall far short of pleading such a defect. No Plaintiff alleges facts to show the presence of any accumulated water or mold growth in his or her HVAC system; that the vehicles contain any mold beyond what is in the ambient air; or that he or she actually experienced any health or safety issues caused by the alleged defect. Plaintiffs do not even allege that they examined the HVAC systems of their vehicles to determine any of these key issues. Nor can Plaintiffs rely upon conclusory “information and belief” allegations to plausibly plead a defect when Plaintiffs alone have the ability to determine whether any water or mold exists in their HVAC systems. The absence of such basic factual allegations is fatal to Plaintiffs’ claims, particularly given that Plaintiffs’ own pleading acknowledges that HVAC odor has multiple potential causes unrelated to any defect; thus, it cannot be presumed from the mere existence of odor that Plaintiffs’ HVAC systems contain a defect. The Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 13 of 43 Page ID #:567 DB1/ 91790023.5 2 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES documents and exhibits that Plaintiffs incorporate by reference into their FAC demonstrate that odors from an HVAC system can be produced by many different causes, including odors introduced into the vehicle’s cabin from sources such as dirty gym clothes and take-out food; variations in outside temperature; and the frequency and settings of HVAC system usage. Because Plaintiffs allege no facts to show that any alleged odor in their vehicles is the result of a supposed defect, rather than any one of these other potential causes, Plaintiffs’ have failed to plead any viable claim for relief. In addition to this overarching flaw, Plaintiffs’ claims fail in other ways: First, Plaintiffs fail to plead any breach of warranty claim (Counts V-VIII). Plaintiffs’ express warranty claims fail, because Plaintiffs do not allege that they presented their vehicles for repair during the warranty period or that Toyota failed to repair their vehicles during that period. Moreover, Plaintiffs’ written warranties exclude design defects like those alleged in this case; the written warranties are limited to defects in “materials and/or workmanship”-not in a design. Likewise, Plaintiffs fail to state an implied warranty of merchantability claim, because they do not and cannot allege any facts to support a finding that their vehicles are not fit for their ordinary purpose of providing transportation. Failure to plead an underlying breach of warranty claim, in turn, requires dismissal of the Magnuson-Moss Warranty Act claims and the California Song-Beverly Warranty Act claim. Second, Plaintiffs’ fraud-based claims (Counts I, II, III, VIII-XIV) are all subject to the heightened pleading standard under Rule 9(b) and fail for several reasons. Plaintiffs do not identify any material misrepresentation made by Toyota about their vehicles. Nor do Plaintiffs identify a material, factual omission that Toyota had a duty to disclose. To the contrary, Toyota discloses the possibility of HVAC odor in its owner’s manuals. Further, Plaintiffs do not plausibly allege any facts supporting the existence of an “unreasonable safety hazard”-which the Ninth Circuit recently confirmed is required to establish a duty to disclose an alleged Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 14 of 43 Page ID #:568 DB1/ 91790023.5 3 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES product defect under various state consumer protection statutes. In addition, while Plaintiffs try to invoke an “exclusive” knowledge exception to the general rule that there is no common law duty to disclose, several of the state laws under which Plaintiffs’ claims arise do not recognize this exception, and Plaintiffs plead no facts showing that Toyota had knowledge-much less “exclusive” knowledge-of any supposed defect in the HVAC systems of Plaintiffs’ vehicles when they were sold. Third, Plaintiffs’ negligent misrepresentation claims (Count IV) are barred by the economic loss doctrine, because Plaintiffs seek only economic losses and do not allege any personal injury or property damage. Fourth, Plaintiffs’ claims for equitable relief (including Counts I, II, and IX) fail because Plaintiffs have brought claims that may entitle them to an adequate legal remedy, and the factual bases for their equitable claims are entirely duplicative of their legal claims. Fifth, Plaintiffs Kennedy and Alley’s claims are barred by the Virginia and Colorado statutes of limitations, respectively. Finally, Plaintiffs have no standing to pursue their sweeping claims on behalf of a proposed class encompassing more than 200 different makes, models, and years of vehicles that Plaintiffs did not purchase. Plaintiffs cannot satisfy even the most flexible test for standing, because they do not allege facts to plausibly show that the HVAC systems in their vehicles are the same or even similar to the 200 other proposed class vehicles-ranging from a 2006 subcompact car to a 2015 large sports utility vehicle. Toyota should not be subject to the burden of a massive discovery fishing expedition regarding vehicles to which Plaintiffs have no connection. II. RELEVANT BACKGROUND A. Summary Of Plaintiffs’ Allegations. Plaintiffs reside in six different states and allege they purchased different model Toyota and Lexus vehicles from six different dealerships at varying times. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 15 of 43 Page ID #:569 DB1/ 91790023.5 4 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES FAC at ¶ 16 (2015 Toyota Sienna in Washington); ¶ 18 (Lexus 2007 350 ES in Virginia); ¶ 20 (2014 Toyota Prius in California); ¶ 22 (2015 Toyota RAV4 in Kansas); ¶ 24 (2011 Toyota Sienna in Florida); ¶ 26 (purchase of 2009 Toyota Corolla in Oklahoma, though now resides in Colorado). No Plaintiff identifies a specific advertisement or other affirmative representation that he or she reviewed prior to making his or her purchase. Plaintiffs contend that their vehicles contain a “Defective HVAC System,” which they say “emits noxious and foul odors into the vehicles” as well as, “on information and belief . . . mold and other contaminants.” Id. at ¶ 3 (emphasis added). Plaintiffs assert that, on “information and belief, the Defective HVAC System [in their own vehicles] fails to remove excess water from the evaporator and surrounding enclosure. The moist environment [sic] foul and noxious odors and/or mold and other contaminants, which are emitted into the passenger compartment of the Class Vehicles by the blower.” Id. at ¶ 39 (emphasis added); see also id. at ¶ 3. Aside from conclusory “information and belief” allegations, no Plaintiff alleges that his or her HVAC system actually retains water or contains mold growth as a result of the purported defect. Each Plaintiff contends that he or she purchased his or her vehicle without knowledge of the alleged defect and “corresponding safety hazard.” Plaintiffs Kennedy, Dey, and the Stockingers contend that they have been “exposed to noxious and foul odors” emitted from their HVAC systems, which “on information and belief, is filled with mold and other contaminants.” Id. at ¶¶ 17, 19, 21 (emphasis added). Notably, Plaintiffs Flinn and Alley do not allege that they personally experienced “noxious and foul odors” from their HVAC systems. Id. at ¶¶ 23, 27. And Plaintiff Casper alleges that unidentified “occupants” experienced such odors, but does not specifically allege that he has experienced any such odors. Id. at ¶ 25. No Plaintiff alleges any specific facts about the duration of any HVAC odor they purportedly have experienced when they operate their vehicles. Nor does Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 16 of 43 Page ID #:570 DB1/ 91790023.5 5 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES any Plaintiff assert that he or she suffered any physical harm or adverse health effect as a result of the alleged HVAC system defect. Notwithstanding Plaintiffs’ failure to allege basic facts to support their claims, they seek to represent millions of unnamed Toyota and Lexus owners of more than 200 different vehicles (including 38 different models spanning 11 model years). Yet, Plaintiffs plead no facts to show that the millions of proposed class vehicles share a common HVAC system design, let alone facts alleging a common defect causing mold or HVAC odors. B. Plaintiffs’ FAC Shows That HVAC Odor May Be Caused By Multiple Factors Unrelated To Any Alleged Defect. The plausibility of Plaintiffs’ core legal conclusion-that a common defect caused the HVAC odor that only some of them allegedly experienced-must be considered in light of Plaintiffs’ own exhibits incorporated by reference into Plaintiffs’ FAC. These exhibits show that HVAC odor may be caused by multiple, independent factors that have nothing to do with any alleged defect. The documents attached to Plaintiffs’ FAC provide several alternative sources of HVAC odor unrelated to a design defect, including a “[b]lockage of the evaporator housing drain pipe;” exterior and interior odors, such as air fresheners, animals, dirt, or trash accumulating in the HVAC system; external odors accumulating on the evaporator and released when the evaporator core changes temperature; and debris entering the HVAC system. See FAC at Exhs. A, B, C, and D. The unverified complaints of third parties referenced in the FAC further suggest other sources of HVAC odor, including wet carpets (id. at p. 22), a stuck A/C drain flap (id. at 21), and usage and environmental factors (id. at p. 25). According to Plaintiffs’ own pleading, HVAC odor is not unique to Toyota or Lexus vehicles,1 and it has multiple causes unrelated to any alleged defect. 1 Another unverified complaint referenced in Plaintiffs’ FAC states that “the problem is occurring with other luxury cars (Jaguar, BMW).” FAC at p. 20. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 17 of 43 Page ID #:571 DB1/ 91790023.5 6 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES C. The Owner’s Manuals Disclose The Possibility Of HVAC Odor. Toyota also affirmatively discloses the possibility of HVAC odor to its customers. Each of Plaintiffs’ vehicles came with an owner’s manual at the time of purchase. See Declaration of Barry M. Hare (“Hare Decl.”) at ¶ 3; see also Request for Judicial Notice (“RJN”). The owner’s manuals are also available online. Id. With the exception of the manual for Plaintiff Kennedy’s 2007 Lexus ES 350 vehicle and Plaintiff Alley’s 2009 Toyota Corolla (for which the warranty periods have long since expired), the owner’s manuals expressly disclose information on potential HVAC odor substantially similar to the following:  Air conditioning odors • During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. • To reduce potential odors from occurring: It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. Id., e.g., at Exh. 1 [2011 Toyota Sienna owner’s manual excerpt]; see also id. at Exhs. 2-4. D. There Are No Facts To Show Any Mold Or Safety Problem With The Named Plaintiffs’ Vehicles. Plaintiffs could have tested for accumulated water, mold, and air quality in their vehicles. Yet, Plaintiffs plead no facts to show that they did so or that their HVAC systems have any type of accumulated water or mold growth. Plaintiffs’ FAC also makes passing reference to a 2014 recall for “certain 2011-2013 Toyota models” because of the potential for a clogged HVAC drain hose that could cause water to leak onto the airbag module. FAC at ¶¶ 7, 46. Plaintiffs allege no link between that entirely separate issue and their claims. None of the Plaintiffs purchased any vehicle subject to that recall, allege that their HVAC drain hose is clogged, or otherwise assert any leaks in their HVAC systems. And the recall documents concerning this unrelated issue make clear that the “HVAC Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 18 of 43 Page ID #:572 DB1/ 91790023.5 7 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES assembly used on other vehicles [like Plaintiffs’] is of a different design.” FAC, Exh. E, at 7 (emphasis added). III. LEGAL STANDARDS To survive a motion to dismiss under Rule 12(b)(6), Plaintiffs must provide “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is well-settled that “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In doing so, this Court must disregard “legal conclusions” and “conclusory statements,” and must scrutinize the well-pleaded facts to ensure that they are more than “merely consistent with’ a defendant’s liability.” Id. at 677-79. For allegations based upon “information and belief” to be facially plausible, the allegations must be based on facts “peculiarly within the possession and control of the defendant” or supported by “factual information that makes the inference of culpability plausible.” Soo Park v. Thompson, 851 F.3d 910 (9th Cir. 2017) (no pincites available yet) (quoting Arista Records, LLC v. Doe, 604 F.3d 110, 120 (2d Cir. 2010)). If the allegations based on “information and belief” are made without further facts or are not exclusively within the control of the defendant, they do not survive a motion to dismiss. See, e.g., Barakezyan v. BMW of N. Am., LLC, No. CV1600173SJOGJSX, 2016 WL 2840803, at *3 (C.D. Cal. Apr. 7, 2016); see also Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009). Additionally, because Plaintiffs’ FAC sounds in fraud, it is subject to the heightened pleading standard set forth in Rule 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Rule 9(b) applies to both misrepresentation and omission claims, and requires the complaint to set forth “‘the who, what, when, where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). In deciding the instant motion, the Court may consider documents subject to Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 19 of 43 Page ID #:573 DB1/ 91790023.5 8 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES judicial notice or “incorporated by reference” into the FAC. A document is “incorporated by reference” when the “contents are alleged in a complaint” or when “the plaintiff’s claim depends on the contents of a document.”2 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). The Court need not “accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). IV. ARGUMENT A. All Claims Fail Because Plaintiffs Do Not Plausibly Allege Any Facts Establishing A Defect That Caused Odors Or Mold in Their Vehicles. Plaintiffs assert claims arising from purported misrepresentations, omissions, and breaches of warranty by Toyota about an alleged defect in their HVAC systems. Thus, Plaintiffs must plausibly plead an alleged defect as an element to all of their claims. Plaintiffs fail to do so. Plaintiffs assert on “information and belief” that the alleged defect involves the retention of moisture on the evaporator, leading to mold growth in and odors from their HVAC systems. See FAC at ¶ 39. Plaintiffs’ allegations fall well short of meeting the plausibility threshold because: (1) Plaintiffs do not plead any specific facts to show the actual retention of water or the corresponding presence of mold growth in their vehicles; and (2) Plaintiffs fail to allege facts to connect the alleged defect to any vehicle odors about which they complain, which cannot be assumed given the multiple causes of HVAC odor. Indeed, given that the facts regarding the condition of their own vehicles as to any alleged excessive water or 2 Plaintiffs’ owner’s manuals and warranty guides, and the Center for Disease Control (“CDC”) webpage, are expressly referenced and central to Plaintiffs’ omission-based claims and breach of warranty claims. See FAC, e.g., at ¶¶ 34 (referencing owner’s manuals), fn. 11 - 14 (referencing warranty guides), 53 (alleging that Toyota failed to “disclose the defect to consumers at the time of purchase or lease of the Class Vehicles (or anytime thereafter) . . .”); fn. 8 (referencing CDC webpage); see also RJN. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 20 of 43 Page ID #:574 DB1/ 91790023.5 9 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES mold are within their own knowledge and control, Plaintiffs’ “information and belief” allegations are insufficient to serve as the lynchpin for this litigation. 1. Plaintiffs fail to plead facts that their vehicles retained any water or had any mold growth caused by the alleged defect. As a general matter, Plaintiffs cannot rely on conclusory allegations based on “information and belief” to meet their burden of pleading a plausible claim under Iqbal and Twombly, much less Rule 9(b). See, e.g., Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 926-27 (9th Cir. 2013) (conclusory allegations on “information and belief” are insufficient to state a claim in the absence of additional factual allegations); Fitzgerald v. Bosco Credit, LLC, No. 16-CV-01473-MEJ, 2016 WL 5791253, at *7 (N.D. Cal. Oct. 4, 2016) (granting motion to dismiss claim because value of plaintiff’s property alleged on “information and belief” failed to meet Rule 8 standard and because it was “not a fact exclusively in Defendants’ possession”); Medicinova, Inc. v. Genzyme Corp., No. 14-CV-2513L KSC, 2015 WL 5007827, at *3 (S.D. Cal. Aug. 19, 2015) (applying rule); see also Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1224 (3d ed. 2012) (“[P]leading on information and belief is not an appropriate form of pleading if the matter is within the personal knowledge of the pleader”). Here, all of Plaintiffs’ allegations about the retention of water or mold growth in their own HVAC systems-the core of their defect theory-are entirely conclusory and based on “information and belief.” FAC at ¶¶ 3, 39, 40. Plaintiffs allege no facts to support them, even though this information and the vehicles themselves are uniquely in their possession. Thus, Plaintiffs’ entire defect theory relies upon the very conclusory and inadequate allegations that Iqbal forbids. See Iqbal, 556 U.S. at 681 (allegations that defendant was the “principal architect” of discriminatory policy and that plaintiff was subject to policy “solely on account” of protected characteristics were “conclusory and not entitled to be assumed true”). In fact, each of Plaintiffs’ defect-related allegations ultimately resorts to Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 21 of 43 Page ID #:575 DB1/ 91790023.5 10 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES insufficient “information and belief” speculation, without additional factual support. FAC at ¶¶ 3, 17, 19, 21, 23, 25, 27, 39, 40. For example, Plaintiffs include a picture of an evaporator in their FAC. Id. at ¶ 42. But Plaintiffs do not allege that the picture purports to be of any of the named Plaintiffs’ vehicles. Instead, Plaintiffs assert on “information and belief” that it is a Lexus evaporator with “evidence of mold growth.” Id. Plaintiffs cannot escape their apparent failure to conduct a basic evaluation of their own vehicles prior to filing their FAC through conclusory “information and belief” allegations. Nor can Plaintiffs invoke any exception to the principle that “information and belief” allegations, without further factual support, are insufficient to state a claim. While the Ninth Circuit has recognized that such allegations may be appropriate if the facts are exclusively “within the possession and control of the defendants,” Soo Park, 851 F.3d 910, that is not the case here. Plaintiffs are in possession of their vehicles, and only they can determine whether their HVAC systems actually retain water or contain mold growth. See Yagman v. General Motors Co., No. CV-14- 4696-MWF, 2014 WL 4177295, at *3 (C.D. Cal. Aug. 22, 2014) (dismissing complaint for failing to plausibly allege a defect under Iqbal and Twombly, in part because the “[p]laintiff is in the best position to ascertain the condition of the car engine, which evidently is still in his possession”); Farren v. Select Portfolio Servicing, Inc., No. 2:16-CV-01077-JAM-DB, 2016 WL 6896044, at *2 (E.D. Cal. Nov. 23, 2016) (applying rule). Because Plaintiffs’ defect theory requires facts to show accumulated water or mold growth in their HVAC systems, yet Plaintiffs have alleged no such facts, they have failed to plausibly allege a defect. 2. Plaintiffs fail to plead facts connecting the alleged defect to any odors in their vehicles. The mere existence of HVAC odor, which at least certain Plaintiffs do allege, is insufficient to plead a plausible defect. This is because, as Plaintiffs’ allegations confirm, HVAC odor has many different causes unrelated to any alleged defect. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 22 of 43 Page ID #:576 DB1/ 91790023.5 11 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Two cases illustrate the implausibility of Plaintiffs’ defect theory under these circumstances. In Decoteau v. FCA US LLC, No. 215CV00020MCEEFB, 2015 WL 6951296, at *1 (E.D. Cal. Nov. 10, 2015), the court held the plaintiffs did not plausibly plead the existence of a defect with their vehicles. The plaintiffs alleged that their vehicles “surge forward or hesitate before taking off from a stop,” “stopped moving while [ ] driving,” and “automatically move backward.” Id. Based on these experiences, the plaintiffs alleged there must be a transmission defect causing the described injuries. Id. The court dismissed all of the claims, reasoning that plaintiffs could not plausibly show a defect simply from these experiences and failed to “plausibly connect the existence of the alleged defect to the injuries they claim to have suffered.” Id. at *3. Similarly, in Yagman, 2014 WL 4177295, at *3, the plaintiff alleged that “the vehicle’s engine stopped running and it experienced a complete electrical shutdown,” and that after “unsuccessful testing by a mechanic at a GM dealership, the engine broke down again.” Id. at *2. The plaintiff argued these allegations were sufficient under Iqbal and Twombly because “a jury could reasonably draw the inference that the vehicle was defective.” Id. The court rejected the plaintiff’s argument, finding he had “only alleged an injury, not a defect.” Id. at *3. The court reasoned that the fact that the engine failed renders it “merely possible”-not plausible-that the failure was caused by a defect. Id. Like Decoteau and Yagman, some Plaintiffs here claim to have experienced purportedly foul odors from their HVAC systems. But the mere presence of odor is insufficient to show a defect, particularly where there are “obvious alternative explanation[s]” of HVAC odor that are completely unrelated to the alleged design defect, including blockages introduced into the drain hoses, interior and exterior odors being brought into the vehicle and accumulating in the HVAC system, usage patterns, and environmental conditions. See Twombly, 550 U.S. at 567 (“obvious alternative explanation” precludes finding that plaintiff has plausibly alleged Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 23 of 43 Page ID #:577 DB1/ 91790023.5 12 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES claims); see Sec. II.B (describing alternative causes of HVAC odors). Plaintiffs allege no facts that odors in their vehicles are the result of accumulated water or mold in their HVAC systems, as opposed to the many other potential causes. See Somers v. Apple, Inc., 729 F.3d 953, 965 (9th Cir. 2013). Put simply, Plaintiffs have not plausibly alleged a defect with their HVAC systems because: (1) there are many known, alternative causes of HVAC odor; and (2) Plaintiffs allege nothing to link the purported odor they have experienced to the defect they claim (i.e., accumulated water or mold growth in their HVAC systems). Thus, all of Plaintiffs’ claims fail and should be dismissed. B. Plaintiffs’ Breach Of Warranty Claims Fail For Additional Reasons. Plaintiffs’ failure to plausibly plead the existence of a defect in their own vehicles is fatal to all of their claims. Additional reasons exist for dismissing each of the specific counts in the FAC.3 1. Plaintiffs’ breach of express warranty claims should be dismissed for multiple reasons. Plaintiffs’ express warranty claims are based solely on the “Toyota New Vehicle Limited Warranty” and the “Lexus Basic Warranty.” FAC at ¶ 146. It is well-settled, however, that a manufacturer is “not liable for breach of express warranty merely because a product manifests recurring failures during the warranty period. Rather, the question is whether [a plaintiff] sought repairs, refunds, or replacements and, if so, whether [the manufacturer] responded appropriately under the warranty.” Coe v. Philips Oral Healthcare Inc., No. C13-518-MJP, 2014 WL 3 Plaintiffs Casper, Flinn, Kennedy, the Stockingers, and Alley allege that their claims arise under the laws of Florida, Kansas, Virginia, Washington, and Colorado, respectively. FAC at ¶¶ 209, 231, 255, 275, 294. Plaintiff Dey’s claims are brought under California law, where he resides and purchased his vehicle. Id. at ¶¶ 19, 195. For purposes of this motion only, Toyota assumes these laws apply to the named Plaintiffs’ claims. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 24 of 43 Page ID #:578 DB1/ 91790023.5 13 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES 722501, at *7 (W.D. Wash. Feb. 24, 2014) (dismissing express warranty claim because the plaintiffs did not allege that they exercised the warranty or that the defendant responded inappropriately); Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962, 978 (C.D. Cal. 2014) (applying rule to dismiss claim). Here, Plaintiffs’ written warranties are limited to “repairs and adjustments needed to correct defects in materials or workmanship,” but no Plaintiff alleges that he or she sought repairs of the alleged defect during the warranty period for his or her vehicle-much less that Toyota failed to repair the vehicle in response to such a request. See Hare Decl.,e.g., Exh. 5 (2011 Sienna warranty guide) at p. 18. For this independent reason, Plaintiffs’ express warranty claims must be dismissed. See, e.g., In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 754 F. Supp. 2d 1145, 1179 (C.D. Cal. 2010) (“Plaintiffs who neither sought repairs pursuant to the recalls nor sought repairs for SUA-related issues may not pursue a claim for breach of express warranty based on the written warranty”); Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 744 n.7 (Colo. 1991) (applying rule); see also David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309, 1318 (S.D. Fla. 2009) (manufacturer only liable under the terms of warranty). Moreover, Plaintiffs complain about a design defect, but the written warranties applicable to Plaintiffs’ vehicles cover only defects in “materials and/or workmanship,” which, by definition, exclude design defects. See Bros. v. Hewlett- Packard Co., No. C-06-02254, 2007 WL 485979, at *4 (N.D. Cal. Feb. 12, 2007). “Unlike defects in materials or workmanship, a design defect is manufactured in accordance with the product’s intended specifications.” Id. Thus, for this additional reason, Plaintiffs’ breach of express warranty claims should be dismissed. See, e.g., In re Toyota Motor Corp., 754 F. Supp. 2d at 1180-81 (dismissing claim because warranty guaranteeing against “materials and workmanship” did not extend to design defects); Gertz v. Toyota Motor Corp., No. CV 10-1089, 2011 WL 3681647, at *3 (C.D. Cal. Aug. 22, 2011) (same). Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 25 of 43 Page ID #:579 DB1/ 91790023.5 14 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES 2. Plaintiffs’ breach of implied warranty claims fail, too. Every alleged shortcoming of a product does not render that product “unmerchantable.” “[I]n the case of automobiles, the implied warranty of merchantability can be breached only if the vehicle manifests a defect that is so basic it renders the vehicle unfit for its ordinary purpose of providing transportation.” Am. Suzuki Motor Corp. v. Sup. Ct., 37 Cal. App. 4th 1291, 1296 (1995) (citation omitted); accord Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wash. App. 39, 44 (1976) (same under Washington law); accord Lowe v. Mercedes Benz of N. Am., 103 F.3d 118,1996 WL 694433, at *4 (4th Cir. Dec. 5, 1996) (same under Virginia law); accord Fla. Stat. Ann. § 672.314 (products need only be “fit for ordinary purpose[] for which such goods are used”). The implied warranty of merchantability does not require an automobile to be “perfect in every detail so long as it ‘provides for a minimum level of quality.’” Tae Hee Lee, 992 F. Supp. 2d at 980 (citation omitted); accord Int’l Petroleum Serv., Inc. v. S & N Well Serv., Inc., 230 Kan. 452, 454 (1982) (same under Kansas law); see also Troup v. Toyota Motor Corp., 545 F. App’x 668, 669 (9th Cir. 2013) (affirming dismissal of implied warranty claim because “alleged defect did not compromise the vehicle’s safety, render it inoperable, or drastically reduce its mileage range”). Plaintiffs’ conclusory allegation that their vehicles “were not fit for the ordinary purpose of providing safe and reliable transportation” is insufficient under Iqbal and Twombly to support a breach of implied warranty claim. FAC at ¶ 164. Plaintiffs do not contend that they cannot use or have stopped using their vehicles for transportation because of the alleged defect. Plaintiffs do not allege that their HVAC systems have failed to heat and cool their vehicles. Plaintiffs do not allege that the odor was anything other than temporary upon starting the vehicle, or even that they have stopped using their HVAC systems. In addition, Plaintiffs’ implied warranty claims under California, Florida, Washington, and Virginia laws also fail for another, independent reason: Plaintiffs Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 26 of 43 Page ID #:580 DB1/ 91790023.5 15 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES do not allege that they are in privity with Toyota. See Clemens v. DaimlerChrysler Corp., 534 F. 3d 1017, 1023 (9th Cir. Cal. 2008) (affirming dismissal of implied warranty claim because the plaintiff “who buys from a retailer is not in privity with a manufacturer”); accord Indem. Ins. Co. v. Am. Aviation, Inc., 891 So. 2d 532, 539 (Fla. 2004), receded from on other grounds as stated in Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla. 2013); accord Tex. Enters., Inc. v. Brockway Standard, Inc., 149 Wash. 2d 204, 209 (2003); accord Beard Plumbing and Heating, Inc. v. Thompson Plastics, Inc., 254 Va. 240, 245 (Va. 1997). Plaintiffs allege that they purchased their vehicles from various dealerships-not directly from Toyota. FAC at ¶¶ 16, 18, 20, 22, 24, 26. Accordingly, these claims fail, too. 3. Plaintiffs’ MMWA and California statutory warranty claims fail as a matter of law. Plaintiff Dey’s Song-Beverly Act and Plaintiffs’ Magnuson-Moss Warranty Act (“MMWA”) claims should be dismissed because Plaintiffs fail to allege a breach of implied or express warranty under any state law. See Birdsong v. Apple, Inc., 590 F.3d 955, 958, n. 2 (9th Cir. 2009) (dismissing Song-Beverly Act and MMWA claims because no state law warranty claim had been pled). Plaintiffs’ MMWA claim also fails because Plaintiffs do not allege that they availed themselves of Toyota’s informal dispute resolution procedures, as required by 15 U.S.C. § 2310(a). The MMWA contains an explicit congressional policy statement encouraging “warrantors to establish procedures whereby consumer disputes are fairly and expeditiously settled through informal dispute settlement mechanisms.” Id. § 2310(a)(1). Pursuant to this policy, a “class of consumers may not proceed in a class action . . . unless the named plaintiffs . . . initially resort to [the warrantor’s informal dispute settlement mechanism].” Id. § 2310(a)(3)(C)(ii). Here, all of Plaintiffs’ vehicles are subject to warranty manuals with a “Dispute Settlement Program.” See Hare Decl. at Exhs. 5-10. Plaintiffs do not and Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 27 of 43 Page ID #:581 DB1/ 91790023.5 16 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES cannot allege that they went through this dispute resolution program. C. Plaintiffs’ Fraud-Based Claims Also Fail For Other Independent Reasons. The requirements of Plaintiffs’ fraud, negligent misrepresentation, and statutory consumer protection claims vary significantly from state to state.4 As alleged and as a core element of their claims, however, Plaintiffs must plead a material misrepresentation or omission that Toyota had a duty to disclose and the specific details of the alleged fraud, as required by Rule 9(b). FAC, at ¶¶ 93-95, 112-14, 122, 136, 216, 243, 264, 283, 301; see, e.g., Williams v. Yamaha Motor Co., 851 F.3d 1015, No. 15-55924, 2017 WL 1101095, at *10 (9th Cir. March 24, 2017). Because Plaintiffs fail to meet these basic pleading requirements, their fraud-based claims should be dismissed. 1. Plaintiffs have not alleged a misrepresentation by Toyota. Plaintiffs do not identify a single representation made to them by Toyota that they saw and relied on in purchasing their vehicles. Their fraud-based claims, therefore, fail under Iqbal, Twombly, and Rule 9(b). See Kearns, 567 F.3d at 1125- 26 (affirming dismissal of CLRA and UCL claims where the plaintiff failed to plead particular misrepresentation relied upon, when those misrepresentations were made, and by whom); Enomoto v. Space Adventures, Ltd., 624 F. Supp. 2d 443, 456 (E.D. Va. 2009) (fraud is a necessary element to establish claim under the VCPA); accord Kan. Stat. Ann. § 50-626(a)-(b) (KCPA requires a misrepresentation of a material fact); accord Hangman Ridge Training Stables, Inc., 105 Wash. 2d 778, 785 (1986) (WCPA requires an unfair or deceptive act); accord Guerrero v. Target 4 Plaintiffs assert statutory consumer protection claims under the California Consumer Legal Remedies Act (“CLRA”), California Unfair Competition Law (“UCL”), Florida Deceptive & Unfair Trade Practices Act (“FDUTPA”), Kansas Consumer Protection Act (“KCPA”), Virginia Consumer Protection Act (“VCPA”), Washington Consumer Protection Act (“WCPA”), and Colorado Consumer Protection Act (“CCPA”). Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 28 of 43 Page ID #:582 DB1/ 91790023.5 17 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Corp., 889 F. Supp. 2d 1348, 1355-57 (S.D. Fla. 2012) (dismissing misrepresentation-based claims under FDUTPA because plaintiff relied upon conclusory allegations); accord Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 147 (Colo. 2003) (CCPA claim based upon fraud requires actionable misrepresentation). At most, the FAC references a few generalized statements like “We’re confident-as you should be-that your Toyota will provide you with many years of enjoyable driving.” FAC at ¶ 124. But these statements are non-actionable puffery. See Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 973 (9th Cir. 2009) (“Generalized, vague, and unspecified assertions constitute ‘mere puffery’ . . . and hence are not actionable” (internal citation omitted)). Moreover, Plaintiffs plead no details regarding any such statements, including if and when each Plaintiff viewed such statements before purchasing their vehicle or whether they relied upon any such statements at the time of purchase. In fact, Plaintiffs plead no factual details regarding the purchase of their vehicles. Thus, Plaintiffs’ misrepresentation-based claims should be dismissed. 2. Plaintiffs’ omission-based theory of liability is fatally flawed for several independent reasons. a. Plaintiffs have not identified a material omission. Plaintiffs contend that Toyota failed to disclose that their HVAC systems purportedly emit “noxious and foul” odors due to a vaguely-defined design defect that causes the retention of water and mold growth. But Plaintiffs do not allege what specifically should have been disclosed to them, in what form, by whom, or whether Plaintiffs even would have seen such a disclosure prior to purchasing their vehicles. For this reason alone, their omission claims fail. See, e.g. Eisen v. Porsche Cars N. Am., Inc., No. CV 11-9405 CAS FEMX, 2012 WL 841019, at *3 (C.D. Cal. Feb. 22, 2012) (holding that plaintiff “must describe the content of the omission and where the omitted information should or could have been revealed, as Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 29 of 43 Page ID #:583 DB1/ 91790023.5 18 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES well as provide representative samples of advertisements, offers, or other representations that plaintiff relied on to make her purchase and that failed to include the allegedly omitted information” (internal quotations omitted)). Plaintiffs’ inability to provide such elements of an omission claim is not surprising given that the facts are directly to the contrary-that is, rather than concealing the possibility of HVAC odor from Plaintiffs, Toyota expressly disclosed this possibility in the owner’s manuals accompanying nearly all Plaintiffs’ vehicles at the time of purchase. Those owner’s manuals also are available online. See Sec. II.C; see also Hare Decl. at ¶ 3. Regardless of what law applies, disclosure of allegedly omitted information refutes Plaintiffs’ omission- based claims. Other courts properly have dismissed similar claims as a matter of law when the alleged issue associated with the supposed defect is disclosed in user guides or owner’s manuals that are available at the time of purchase. See Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 WL 1743381, at *2 (N.D. Cal. Apr. 16, 2015) (defendant satisfied any duty to disclose the alleged defect because potential for laptop to get hot and burn customers was included in hard-copy user guides); see also Barakezyan, 2016 WL 2840803, at *12 (defendant satisfied duty to disclose alleged defect because it “disclosed the potential for brake noise in its owner’s manual”). This Court should do the same.5 b. Plaintiffs’ claims under state consumer protection laws also fail because they cannot allege a duty to disclose absent an “unreasonable safety hazard.” The Ninth Circuit recently confirmed that to establish a duty to disclose an alleged defect under state consumer protection laws, a plaintiff must allege, among other things, “the existence of an unreasonable safety hazard” and “a causal 5 To the extent Plaintiffs argue that Toyota failed to disclose any “unreasonable safety hazard” associated with HVAC odor, as set forth in Section IV.C.2.b., Plaintiffs fail to plausibly plead the existence of such a hazard. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 30 of 43 Page ID #:584 DB1/ 91790023.5 19 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES connection between the alleged defect and the alleged safety hazard.” Williams, 851 F.3d 1015, 2017 WL 1101095, at *10 (affirming dismissal of failure-to- disclose consumer protection claims under, inter alia, UCL, CLRA, WCPA, FDUTPA, and VCPA because the plaintiffs failed to plead an “unreasonable safety hazard” caused by the alleged defect) (internal quotations omitted); Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1142-43 (9th Cir. 2012) (plaintiff must allege existence of an “unreasonable safety hazard” caused by the alleged defect in order to trigger duty to disclose). Thus, unless a product presents a safety risk, a manufacturer has no duty to disclose under state consumer protection laws. Id. at *9. In Williams, purchasers of outboard motors alleged that Yamaha violated state consumer protection statutes because it possessed a duty to disclose, but failed to disclose, an alleged defect that caused premature corrosion in the motors’ dry exhaust system. Id. at *1-*2. The plaintiffs alleged that premature corrosion occurred both during and after the warranty period. Id. at *1, *8. In attempting to establish a duty to disclose the alleged defect, the plaintiffs offered two theories of an “unreasonable safety hazard”: (1) the potential for onboard fires and (2) the risk of an accident and associated injuries due to loss of steering power. Id. at *9. The Ninth Circuit rejected both theories as “speculative and unsupported by the factual allegations.” Id. In particular, no named plaintiff alleged that he or she experienced an onboard fire, and the “loss of steering power, while plausibly hazardous, is a potential boating condition of which Yamaha expressly warns consumers.” Id. Like in Williams, Plaintiffs fail to plausibly allege an “unreasonable safety hazard” in order to establish that Toyota had a duty to disclose the alleged defect under state consumer protection laws. Plaintiffs offer two theories: (1) a “safety hazard” based on “exposure to mold” and (2) “additional safety concerns in some Class Vehicles where water that has accumulated in the HVAC System can leak Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 31 of 43 Page ID #:585 DB1/ 91790023.5 20 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES onto the airbag module . . . disabling the airbag or causing inadvertent deployment.” FAC at ¶¶ 6 and 7 (emphasis added). Neither theory plausibly pleads a non- speculative “unreasonable safety hazard.” Like the purchasers in Williams, no Plaintiff alleges that he or she has been exposed to mold caused by the alleged defect, or that he or she has suffered any health issues or increased health risk due to the purported exposure. Moreover, as required by Williams, the alleged hazard must rise to the level of being unreasonable. Because mold exists at some level in nearly all environments, see Decl. of David Schrader, Ex. 1 [CDC webpage], simply pleading the existence of mold generally is insufficient to plausibly establish an “unreasonable safety hazard.” Likewise, Plaintiffs do not allege that they experienced any purported “safety concern[]” regarding airbag modules, which Plaintiffs concede only affects “some Class Vehicles.” FAC at ¶ 7. Plaintiffs rely exclusively on a recall document (Exh. E to the FAC) to support this “safety concern” in their own vehicles, but that recall applied to the Camry model (which is not a proposed class vehicle in this case) and the Venza and Avalon models (which no named Plaintiff purchased). Indeed, the recall expressly noted that the vehicles owned by Plaintiffs are not covered because “[t]he HVAC assembly used on other vehicles is of a different design.” FAC at Exh. E. Moreover, the recall was based upon the potential for water accumulation because of a clogged HVAC drain-not because of a supposed problem with an HVAC evaporator (like Plaintiffs allege here). Compare FAC ¶ 65 with FAC ¶ 38. Accordingly, Plaintiffs’ failure to allege an “unreasonable safety hazard” defeats Plaintiffs’ consumer protection claims as a matter of law. c. Plaintiffs also fail to allege a duty to disclose with respect to their common law nondisclosure claims. Plaintiffs allege common law nondisclosure claims pursuant to six different state laws. Each state law requires the existence of a duty to disclose in order to establish an omission-based theory of liability, and each generally rejects a broad Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 32 of 43 Page ID #:586 DB1/ 91790023.5 21 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES duty to disclose when the parties are engaged in an arms-length transaction, as is the case here. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012) (“California courts have generally rejected a broad duty to disclose . . .”); accord White v. Potocska, 589 F. Supp. 2d 631, 642 (E.D. Va. 2008) (Virginia law); accord Plastic Packaging Corp. v. Sun Chem. Corp., 136 F. Supp. 2d 1201, 1205 (D. Kan. 2001) (Kansas law); Van Dinter v. Orr, 157 Wash. 2d 329, 334 (Washington law); accord Alpine Bank v. Hubbell, 555 F.3d 1097, 1109 (10th Cir. 2009) (Colorado law); accord TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 879 (Fla. Dist. Ct. App. 2000) (Florida law). Given the absence of a broad duty to disclose, Plaintiffs must plead facts to demonstrate that an exception to the rule exists. Here, Plaintiffs attempt to invoke the “exclusive” knowledge exception by alleging that Toyota had “superior and exclusive knowledge regarding the defect and the hazard associated with the Defective HVAC system.” FAC at ¶¶ 127, 135. The six state laws under which Plaintiffs allege their common law omission-based claims vary dramatically as to their recognition and application of an “exclusive” knowledge exception-and Plaintiffs fail to plead facts to support such an exception. (1) Florida and Colorado laws do not recognize an “exclusive” knowledge exception. The prevailing view under Florida law does not recognize a categorical “exclusive” knowledge exception to establish a common law duty to disclose. See Marriott Int’l, Inc. v. Am. Bridge Bah., Ltd., 193 So. 3d 902, 908 (Fla. Dist. Ct. App. 2015) (dismissing fraud-based claim in the absence of a fiduciary duty or partial disclosure); see also BCJJ, LLC v. LeFevre, No. 8:09-CV-551-T-17EAJ, 2011 WL 989230, at *7 (M.D. Fla. Mar. 21, 2011) (“In the absence of a fiduciary relationship, the nondisclosure of material facts in an arms-length transaction is not actionable misrepresentation unless Defendant M & I employed an artifice or trick to prevent an independent investigation by Plaintiff BCJJ”). Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 33 of 43 Page ID #:587 DB1/ 91790023.5 22 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Likewise, Colorado law does not recognize a categorical “exclusive” knowledge exception, and generally requires the existence of a fiduciary duty or partial representation in order to establish a duty to disclose. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1109 (10th Cir. 2009) (setting forth circumstances under which a duty to disclose may arise under Colorado law). Accordingly, Plaintiffs Casper and Alley’s omission-based claims must be dismissed as a matter of law. (2) The remaining Plaintiffs fail to satisfy the elements of the “exclusive” knowledge exception under the laws of California, Kansas, Virginia, and Washington. For those state laws that recognize an “exclusive” knowledge exception to the general rule that there is no duty to disclose, Plaintiffs must show that Toyota “knew of th[e] defect while plaintiffs did not, and, given the nature of the defect, it was difficult to discover.” Herron v. Best Buy Co. Inc., 924 F. Supp. 2d 1161, 1175 (E.D. Cal. 2013) (internal citations omitted) (California law); accord Plastic Packaging Corp., 136 F. Supp. 2d at 1205 (Kansas law); accord Colonial Imports, Inc. v. Carlton Northwest, Inc., 121 Wash. 2d 726, 733 (Wash. 1993) (Washington law); see Noell Crane Sys. GmbH v. Noell Crane & Serv., 677 F. Supp. 2d 852, 872-873 (E.D. Va. 2009) (Virginia law). Plaintiffs fail to and cannot satisfy their burden of establishing this exception. Plaintiffs fail to allege that Toyota had knowledge about an alleged defect causing water retention or mold growth-let alone an “unreasonable safety hazard”-at the time of Plaintiffs’ purchases. Wilson, 668 F.3d at 1145 (requiring that the “plaintiffs must sufficiently allege that a defendant was aware of a defect at the time of sale to survive a motion to dismiss”). Plaintiffs rely primarily on technical service bulletins (“TSBs”) to establish Toyota’s knowledge of the alleged defect (FAC at ¶¶ 57-67), but TSBs are routine communications to dealerships; they do not reflect knowledge-“exclusive” or otherwise-of a defect. See Am. Honda Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 34 of 43 Page ID #:588 DB1/ 91790023.5 23 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Motor Co. v. Sup. Ct., 199 Cal. App. 4th 1367, 1378 (2011) (“A TSB is not and cannot fairly be construed by a trial court as an admission of a design or other defect, because TSB’s are routinely issued to dealers to help diagnose and repair typical complaints”). Although the TSBs cited by Plaintiffs acknowledge and describe potential sources of HVAC odors, none of the TSBs show that Toyota was aware, let alone possessed any “exclusive” knowledge, of any alleged design defect causing the retention of excess water in HVAC systems that leads to mold growth and odors. In fact, several TSBs involve vehicle models other than those owned by Plaintiffs.6 See, e.g., Fisher v. Honda N. Am., No. LA CV13-09285 JAK, 2014 WL 2808188, at *6 (C.D. Cal. June 12, 2014) (finding TSBs insufficient to show knowledge because three of the TSBs did not relate to the one model of vehicle at issue, and while only one TSB related to the alleged class vehicle, it did not refer to the defect at issue). Moreover, the TSBs discuss issues relating to how maintenance can be done to combat HVAC odor-an issue described in Toyota’s Owners’ Manuals. Plaintiffs hardly can claim that the potential for HVAC odor was within Toyota’s “exclusive” knowledge when the Owner’s Manuals discussed this very issue. Plaintiffs also attempt to show knowledge about the alleged defect from 16 unverified consumer complaints to NHTSA about HVAC odor spanning 15 years- which reduces to approximately one complaint per year. FAC ¶ 16. Moreover, all but three of the complaints concern models that Plaintiffs never purchased, and the three remaining complaints (over a 15-year period) apply to a particular model year Sienna that no Plaintiff owns. Likewise, Plaintiffs attempt to rely upon conclusory allegations about unidentified “pre-production testing, pre-production design failure mode analysis, production design failure mode analysis, early consumer complaints 6 See FAC at Exh. A [May 9, 1997 TSB re: Air Conditioning Evaporator Odor addressing vehicles not at issue in Plaintiffs’ FAC]; Exh. B [Nov. 29, 2011 TSB re: HVAC Odor involving Toyota Camrys]. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 35 of 43 Page ID #:589 DB1/ 91790023.5 24 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES made to Defendant’s network of exclusive dealers, aggregate warranty data compiled from those dealers, repair order and parts data received from the dealers, consumer complaints to dealers and NHTSA, and testing performed in response to consumer complaints,” FAC at ¶¶ 50, 56, but numerous courts have rejected these types of conclusory allegations as insufficient to show “exclusive” knowledge. See Grodzitsky v. Am. Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 690822, at *6 (C.D. Cal. Feb. 19, 2013) (finding insufficient allegations of “pre- release testing data, early consumer complaints to Honda and dealers, testing done in response to complaints, replacement part sales data, aggregate data from Honda dealers, and other internal sources”); see also Herremans v. BMW of N. Am., LLC, No. CV 14-02363 MMM PJWX, 2014 WL 5017843, at *17 (C.D. Cal. Oct. 3, 2014) (same); see also Polygon Northwest Co. LLC v. Louisiana-Pacific Corp., No. C11-620 MJP, 2012 WL 2504873, at *6 (W.D. Wash. June 28, 2012) (finding “mere existence of other customers having filed warranty claims does not suggest LP knew the Rockwell siding was defective”). More significantly, Plaintiffs’ own allegations refute their assertion that Toyota had “exclusive” knowledge about HVAC odor and its underlying source. Plaintiffs acknowledge various sources of “publicly available information” (FAC at n. 1) about HVAC odor, including customer complaints, TSBs, and websites addressing this very issue (i.e., FAC at n. 7, citing the CARSPEC website). See, e.g., Herron, 924 F. Supp. 2d at 1175 (failing to plead “exclusive” knowledge where plaintiff “could have readily recognized any deficiencies in his Laptop’s battery life” because of publicly available information); see Wolph v. Acer Am. Corp., No. C 09-01314 JSW, 2009 WL 2969467, at *4 (N.D. Cal. Sept. 14, 2009) (no exclusivity because, “[b]ased on Plaintiffs[’] own allegations,” information about purportedly omitted fact was publicly available). In fact, rather than concealing any information, Toyota discloses the possibility of HVAC odor in nearly all of the Owner’s Manuals for Plaintiffs’ Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 36 of 43 Page ID #:590 DB1/ 91790023.5 25 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES vehicles, which were provided to Plaintiffs at the time of purchase and also are available online. See Hare Decl. at Exhs. 1-4. Simply put, Toyota did not have “exclusive” knowledge regarding the potential for HVAC odor since it disclosed this very information. See Stickrath v. Globalstar, Inc., No. C07-1941 TEH, 2008 WL 344209, at *4 (N.D. Cal. Feb. 6, 2008) (no exclusivity where defendant disclosed omitted information in “public filings” and “application with the FCC”). 3. The economic loss rule independently bars Plaintiffs’ negligent misrepresentation claims. The economic loss rule “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Robinson Helicopter Corp. v. Dana Corp., 34 Cal. 4th 979, 988 (2005). Where the plaintiff alleges a claim for negligence based on a defective product, “a manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone.” Seely v. White Motor Co., 63 Cal. 2d 9, 18 (1965). This principle applies to each state law negligent misrepresentation claims asserted by Plaintiffs. See Sharma v. BMW of N. Am., LLC, No. C-13-2274 MMC, 2014 WL 2795512, *6-7 (N.D. Cal. June 19, 2014) (California law); Branin v. TMC Enterprises, LLC, 832 F. Supp. 2d 646, 654-55 (W.D. Va. 2011) (Virginia law); accord Alejandre v. Bull, 159 Wash. 2d 674, 681 (2007) (Washington law); accord Aprigliano v. Am. Honda Motor Co., 979 F. Supp. 2d 1331, 1337 (S.D. Fla. 2013) (Florida law); accord Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071, 1076 (D. Kan. 2004) (Kansas law); accord BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 74 (Colo. 2004) (Colorado law). Here, Plaintiffs seek damages for purported economic loss only and specifically do not seek recovery resulting from personal injury or damage to other property. See FAC at ¶ 139. Thus, Plaintiffs’ negligent misrepresentation claims are barred by the economic loss rule. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 37 of 43 Page ID #:591 DB1/ 91790023.5 26 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES D. Plaintiffs’ Equitable Claims Fail Because They Have Not Established That There Is No Adequate Remedy at Law Available. Plaintiffs seek equitable relief in the form of restitution and injunctive relief through their state law consumer protection claims and “claims” for unjust enrichment. See FAC at ¶¶ 103, 119, 193, 229, 253, 273, 292. These claims for equitable relief fail for several fundamental reasons. First, “it is axiomatic that a court should determine the adequacy of damages at law before resorting to equitable relief.” See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 62 (1992). “Where the claims pleaded by a plaintiff may entitle her to an adequate remedy at law, equitable relief is unavailable.” Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095, at *4 (N.D. Cal. May 31, 2011) (emphasis added); accord Licul v. Volkswagen Grp. of Am., Inc., No. 13-61686- CIV, 2013 WL 6328734, at *7 (S.D. Fla. Dec. 5, 2013) (Florida law); accord Shafer, Kline & Warren, Inc. v. The Allen Grp.-Kansas City, LLC, No. 13-2472- JAR-TJJ, 2014 WL 1974525, at *2 (D. Kan. May 15, 2014) (Kansas law); accord Seattle Prof’l Eng’g Employees Ass’n v. Boeing Co., 139 Wash. 2d 824, 839 (2000) (Washington law); Francis v. Mead Johnson & Co., No. 1:10-CV-00701-JLK, 2010 WL 5313540, at *9 (D. Colo. Dec. 17, 2010) (Colorado law). Here, Plaintiffs allege they are entitled to an adequate legal remedy through their breach of warranty, fraud, and statutory consumer protection claims, which may entitle them to damages. See FAC, e.g., at ¶¶ 156, 167. Thus, the attempt to allege that an adequate legal remedy is not available must fail, and Plaintiffs’ claims for equitable relief, including their UCL, CLRA, and unjust enrichment claims, should be dismissed.7 See Durkee v. Ford Motor Co., No. C 14-0617 PJH, 2014 WL 4352184, at *2 (N.D. Cal. Sept. 2, 2014). Second, Plaintiffs’ claims for equitable relief fail because they allege no 7 The UCL only allows for equitable remedies. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003). Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 38 of 43 Page ID #:592 DB1/ 91790023.5 27 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES distinction between the factual basis for their claims seeking equitable remedies and their claims seeking legal remedies. See Zapata Fonseca v. Goya Foods, Inc., No. 16-CV-02559-LHK, 2016 WL 4698942, * 7 (N.D. Cal. Sept. 8, 2016) (because the plaintiff’s claims seeking equitable relief “‘rel[ied] upon the same factual predicates as . . . [the] [p]laintiff’s legal causes of action’ . . . they must be dismissed”). Third, Plaintiffs’ claims for unjust enrichment (FAC at ¶¶ 187-193) must be dismissed because Plaintiffs allege the existence and enforceability of an express contract and unjust enrichment is unavailable to redefine that relationship. See Maloney v. Indymac Mortg. Servs., No. CV 13-04781 DDP, 2014 WL 6453777, *7 (C.D. Cal. Nov. 17, 2014) (California law); see also Brown v. Transurban USA. Inc., 144 F. Supp. 3d 809, 844 (E.D. Va. 2015) (Virginia law); Shafer, Kline & Warren, Inc., 2014 WL 1974525, at *2 (Kansas law); Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. Dist. Ct. App. 2008) (Florida law); accord Interbank Investments, LLC v. Eagle River Water and Sanitation Distr., 77 P.3d 814, 816 (Colo. App. 2003) (Colorado law); Chandler v. Wash. Toll Bridge Authority, 17 Wash. 2d 591, 605 (1943) (Washington law). Lastly, Plaintiff Dey’s unjust enrichment “claim” should be dismissed because no independent cause of action for unjust enrichment exists under prevailing California law. See In re Toyota Motor Corp., 754 F. Supp. 2d at 1193- 94 (“Simply put, ‘there is no cause of action in California for unjust enrichment’”); accord Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). E. Plaintiffs Kennedy and Alley’s Claims Are Barred By The Statutes of Limitation. Plaintiff Kennedy alleges that she purchased her vehicle on November 16, 2006; that the express warranty for her vehicle is 48 months or 50,000 miles, whichever occurs first; and that she experienced the alleged defect during the express warranty period. FAC at ¶¶ 18, 146, 148. Because Plaintiff Kennedy’s express warranty expired no later than November 16, 2010, she necessarily Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 39 of 43 Page ID #:593 DB1/ 91790023.5 28 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES discovered the alleged defect no later than this date. The longest conceivable statute of limitation applicable to her claims-which arise under Virginia law-is four years. See Va. Code Ann. § 8.2-725(1) (breach of express warranty claim statute of limitation is four years). Because Plaintiff Kennedy failed to file her lawsuit on November 16, 2014, all of Plaintiff Kennedy’s claims are barred by the applicable statutes of limitation. Likewise, all of Plaintiff Alley’s claims are time-barred under Colorado law. Plaintiff Alley purchased her vehicle on June 26, 2008. FAC at ¶ 26. The warranty extends for 36 months or 36,000 miles, whichever occurs first. Hare Decl. at Exh. 10, p. 62. Because Plaintiff Alley alleges that she experienced the alleged defect during the express warranty period, FAC at ¶ 148, she necessarily discovered the alleged defect no later June 26, 2011. Under Colorado law, the longest applicable limitation period is three years. Colo. Rev. Stat. Ann. § 13-80-101 (three-year period applies to fraud and breach of contract claims); Colo. Rev. Stat. Ann. § 6-1-115 (same for CCPA claim). Because Plaintiff Alley waited well over three years to file her claims, they should be dismissed with prejudice. F. Plaintiffs Do Not Have Standing To Pursue Claims Regarding Vehicles They Did Not Purchase. In the Ninth Circuit, there “is no controlling authority on whether Plaintiffs have standing to sue for products that they did not purchase.” In re 5-hour ENERGY Mktg. & Sales Practices Litig., No. 13-2438 PSG (PLAX), 2017 WL 385042, at *13 (C.D. Cal. Jan. 24, 2017). Courts have taken two different approaches-both of which apply significant standing limits on named plaintiffs who seek to pursue class claims based upon products that they themselves did not purchase. These limits help ensure that a company is not subject to burdensome class-wide discovery regarding products which have no connection to the Plaintiffs. Plaintiffs lack standing under both approaches. Under one line of authority, which Toyota submits is the proper approach, Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 40 of 43 Page ID #:594 DB1/ 91790023.5 29 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES when a plaintiff asserts class claims “based both on products that she purchased and products that she did not purchase, claims relating to products not purchased [by the named Plaintiffs] must be dismissed for lack of standing.” Granfield v. NVIDIA Corp., No. C 11-05403JW, 2012 WL 2847575, at *6 (N.D. Cal. July 11, 2012) (emphasis added); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011) (applying principle); Johns v. Bayer Corp., No. 09CV1935DMSJMA, 2010 WL 476688, *4-5 (S.D. Cal. Feb. 9, 2010) (same). Plaintiffs allege that they purchased four vehicle models (a Toyota Sienna, a Lexus 350 ES, a Toyota Prius, a Toyota RAV4, and a Toyota Corolla). Thus, Plaintiffs lack standing to pursue claims regarding the 33 other makes and models of vehicles (spanning over a decade of model years) that they did not purchase. A second line of authority recognizes that a plaintiff “may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal. 2012) (emphasis added). This Court recently applied this standard in the context of class certification. Sonner v. Schwabe N. Am., Inc., No. EDCV151358VAPSPX, 2017 WL 474106, at *3 (C.D. Cal. Feb. 2, 2017) (Phillips, J.); see also Hass v. Citizens of Humanity, LLC, No. 14-CV-1404 JLS (WVG), 2016 WL 7097870, at *7 (S.D. Cal. Dec. 6, 2016) (dismissing claims based upon products plaintiff did not purchase because no facts showing “those products and their labels are substantially similar to the Ingrid brand jeans Plaintiff purchased”). Even under a “substantially similar” standard, Plaintiffs lack standing to pursue claims pertaining to vehicles they never purchased. Plaintiffs seek to engage in a massive class-wide discovery fishing expedition based upon the insufficient legal conclusion that all 38 models of Toyota and Lexus vehicles-ranging from subcompact cars to large sports utility vehicles and spanning 11 model years-have Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 41 of 43 Page ID #:595 DB1/ 91790023.5 30 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES the same alleged HVAC defect. But Plaintiffs fail to allege a single fact about the other 33 model vehicles they never purchased-much less that those vehicles have the same, or even similar, HVAC systems to the specific models Plaintiffs purchased. Indeed, Plaintiffs’ very pleading shows the opposite-that the HVAC systems of the myriad putative class vehicles involve “different design[s].” FAC at Exh. E. See e.g. Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1142 (N.D. Cal. 2013) (dismissing claims regarding unpurchased products with prejudice because the court “will not assume that each of these subtly different Products is like all the others” and plaintiffs “have to say more, especially when they are asserting standing as to Products they did not purchase-otherwise their pleadings amount to unacceptably bare legal conclusions”). Likewise, because Plaintiffs do not allege any facts about the marketing of the other 33 different model vehicles they never purchased, Plaintiffs do not and cannot show that any unidentified misrepresentations or omissions they rely upon were uniform across the sale of those disparate vehicles-which took place at different times and dealerships across the country. Put simply, Plaintiffs lack standing to bring claims for injuries regarding vehicles to which they have no connection and for which they have asserted no facts. Plaintiffs should not be entitled to engage in a class-wide discovery fishing expedition over such claims based on a sweeping and conclusory allegation of a supposed common defect across more than 200 different types of vehicles (across various makes, models, and years). All of Plaintiffs’ claims should be dismissed in this action; however, at a minimum, the Court should dismiss the claims as to models not purchased by the named Plaintiffs. V. CONCLUSION For the foregoing reasons, Toyota respectfully requests the Court grant this motion to dismiss Plaintiffs’ FAC. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 42 of 43 Page ID #:596 DB1/ 91790023.5 31 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FAC 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Dated: April 17, 2017 MORGAN, LEWIS & BOCKIUS LLP David L. Schrader Esther K. Ro Jahmy S. Graham By /s/ David L. Schrader David L. Schrader Esther K. Ro Jahmy S. Graham Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc. Case 2:17-cv-00035-VAP-KS Document 39-1 Filed 04/17/17 Page 43 of 43 Page ID #:597 DB1/ 91008165.1 SCHRADER DECL. ISO TOYOTA’S MOTION TO DISMISS FAC AND RJN 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES MORGAN, LEWIS & BOCKIUS LLP David L. Schrader, Bar No. 149638 david.schrader@morganlewis.com Esther K. Ro, Bar No. 252203 esther.ro@morganlewis.com Jahmy S. Graham, Bar No. 300880 jahmy.graham@morganlewis.com 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: +1.213.612.2500 Fax: +1.213.612.2501 Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PAUL STOCKINGER, ELIZABETH STOCKINGER, GAILYN KENNEDY, BASUDEB DEY, BRENDA FLINN, ELIEZER CASPER, and YVETTE ALLEY on behalf of themselves and all others similarly situated, Plaintiffs, vs. TOYOTA MOTOR SALES, U.S.A., INC., a California corporation, Defendant. Case No. 2:17-cv-00035-VAP (KSx) DECLARATION OF DAVID L. SCHRADER IN SUPPORT OF DEFENDANT TOYOTA MOTOR SALES, U.S.A., INC.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT AND REQUEST FOR JUDICIAL NOTICE [Notice of Motion and Motion; Memorandum of Points and Authorities; Request for Judicial Notice; and Declaration of Barry M. Hare filed concurrently herewith] [[Proposed] Order lodged concurrently herewith] Date: June 5, 2017 Time: 2:00 p.m. Judge: Hon. Virginia A. Phillips Ctrm.: 8A, 8th Floor Case 2:17-cv-00035-VAP-KS Document 39-2 Filed 04/17/17 Page 1 of 2 Page ID #:598 DB1/ 91008165.1 1 SCHRADER DECL. ISO TOYOTA’S MOTION TO DISMISS FAC AND RJN 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 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DECLARATION OF DAVID L. SCHRADER I, David L. Schrader, declare: 1. I am an attorney at law, duly licensed to practice in the State of California and before this Court, and am a partner with Morgan, Lewis & Bockius LLP, attorneys of record for Defendant Toyota Motor Sales, U.S.A., Inc. (“Toyota”) in this action. I submit this declaration in support of Toyota’s Motion to Dismiss Plaintiffs’ First Amended Complaint (“Motion”) and Request for Judicial Notice in support of the Motion (“RJN”). I have personal knowledge of the facts set forth herein, and if called as a witness I could and would competently testify thereto. 2. Attached hereto as Exhibit 1 is a true and correct copy of “Basic Facts: Molds in the Environment.” This document is a printout of an online summary published by the Center for Disease Control (“CDC”). Exhibit 1 is publicly available on the CDC’s website at http://www.cdc.gov/mold/faqs.htm#affect (last visited April 16, 2017). I declare under penalty of perjury, under the laws of the United States of America, that the foregoing is true and correct. Executed this 17th day of April, 2017, at Los Angeles, California. /s/ David L. Schrader David L. Schrader Case 2:17-cv-00035-VAP-KS Document 39-2 Filed 04/17/17 Page 2 of 2 Page ID #:599 EXHIBIT 1 Exhibit 1 to Schrader Declaration - Page 2 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 1 of 8 Page ID #:600 Basic Facts Molds in the Environment • What are molds? • What are some of the common indoor molds? • How do molds affect people? • Where are molds found? • How can people decrease mold exposure? • What areas have high mold exposures? • I found mold growing in my home, how do I test the mold? • A qualified environmental lab took samples of the mold in my home and gave me the results. Can CDC interpret these results? • What type of doctor should I see concerning mold exposure? • My landlord or builder will not take any responsibility for cleaning up the mold in my home. Where can I go for help? • I’m sure that mold in my workplace is making me sick. (https://www.cdc.gov/mold/faqs.htm#sick) • I am very concerned about mold in my children’s school and how it affects their health. (https://www.cdc.gov/mold/faqs.htm#school) • Basic facts in additional languages. What are molds? Molds are fungi that can be found both indoors and outdoors. No one knows how many species of fungi exist but estimates range from tens of thousands to perhaps three hundred thousand or more. Molds grow best in warm, damp, and humid conditions, and spread and reproduce by making spores. Mold spores can survive harsh environmental conditions, such as dry conditions, that do not support normal mold growth. What are some of the common indoor molds?  Top of Page Page 1 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 3 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 2 of 8 Page ID #:601 • Cladosporium • Penicillium • Alternaria • Aspergillus How do molds affect people? Some people are sensitive to molds. For these people, exposure to molds can cause symptoms such as nasal stuffiness, eye irritation, wheezing, or skin irritation. Some people, such as those with serious allergies to molds, may have more severe reactions. Severe reactions may occur among workers exposed to large amounts of molds in occupational settings, such as farmers working around moldy hay. Severe reactions may include fever and shortness of breath. Some people with chronic lung illnesses, such as obstructive lung disease, may develop mold infections in their lungs. In 2004 the Institute of Medicine (IOM) found there was sufficient evidence to link indoor exposure to mold with upper respiratory tract symptoms, cough, and wheeze in otherwise healthy people; with asthma symptoms in people with asthma; and with hypersensitivity pneumonitis in individuals susceptible to that immune-mediated condition. The IOM also found limited or suggestive evidence linking indoor mold exposure and respiratory illness in otherwise healthy children. In 2009, the World Health Organization issued additional guidance, the WHO Guidelines for Indoor Air Quality: Dampness and Mould (http://www.euro.who.int/document/E92645.pdf) [PDF - 2.52 MB]. Other recent studies have suggested a potential link of early mold exposure to development of asthma in some children, particularly among children who may be genetically susceptible to asthma development, and that selected interventions that improve housing conditions can reduce morbidity from asthma and respiratory allergies, but more research is needed in this regard. Where are molds found? Molds are found in virtually every environment and can be detected, both indoors and outdoors, year round. Mold growth is encouraged by warm and humid conditions. Outdoors they can be found in shady, damp areas or places where leaves or other vegetation is decomposing. Indoors they can be found where humidity levels are high, such as basements or showers. How can people decrease mold exposure?  Top of Page  Top of Page  Top of Page Page 2 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 4 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 3 of 8 Page ID #:602 Sensitive individuals should avoid areas that are likely to have mold, such as compost piles, cut grass, and wooded areas. Inside homes, mold growth can be slowed by controlling humidity levels and ventilating showers and cooking areas. If there is mold growth in your home, you should clean up the mold and fix the water problem. Mold growth can be removed from hard surfaces with commercial products, soap and water, or a bleach solution of no more than 1 cup of household laundry bleach in 1 gallon of water. If you choose to use bleach to clean up mold: • Never mix bleach with ammonia or other household cleaners. Mixing bleach with ammonia or other cleaning products will produce dangerous, toxic fumes. • Open windows and doors to provide fresh air. • Wear non-porous gloves and protective eye wear. • If the area to be cleaned is more than 10 square feet, consult the U.S. Environmental Protection Agency (EPA) guide titled Mold Remediation in Schools and Commercial Buildings. Although focused on schools and commercial buildings, this document also applies to other building types. You can get it by going to the EPA web site at http://www.epa.gov/mold/mold_remediation.html (http://www.epa.gov/mold/mold_remediation.html) . • Always follow the manufacturer’s instructions when using bleach or any other cleaning product. Specific Recommendations: • Keep humidity levels as low as you can-no higher than 50%-all day long. An air conditioner or dehumidifier will help you keep the level low. Bear in mind that humidity levels change over the course of a day with changes in the moisture in the air and the air temperature, so you will need to check the humidity levels more than once a day. • Use an air conditioner or a dehumidifier during humid months. • Be sure the home has adequate ventilation, including exhaust fans. • Add mold inhibitors to paints before application. • Clean bathrooms with mold killing products. • Do not carpet bathrooms and basements. • Remove or replace previously soaked carpets and upholstery. What areas have high mold exposures? • Antique shops • Greenhouses • Saunas • Farms  Top of Page Page 3 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 5 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 4 of 8 Page ID #:603 • Mills • Construction areas • Flower shops • Summer cottages I found mold growing in my home, how do I test the mold? Generally, it is not necessary to identify the species of mold growing in a residence, and CDC does not recommend routine sampling for molds. Current evidence indicates that allergies are the type of diseases most often associated with molds. Since the susceptibility of individuals can vary greatly either because of the amount or type of mold, sampling and culturing are not reliable in determining your health risk. If you are susceptible to mold and mold is seen or smelled, there is a potential health risk; therefore, no matter what type of mold is present, you should arrange for its removal. Furthermore, reliable sampling for mold can be expensive, and standards for judging what is and what is not an acceptable or tolerable quantity of mold have not been established. A qualified environmental lab took samples of the mold in my home and gave me the results. Can CDC interpret these results? Standards for judging what is an acceptable, tolerable, or normal quantity of mold have not been established. If you do decide to pay for environmental sampling for molds, before the work starts, you should ask the consultants who will do the work to establish criteria for interpreting the test results. They should tell you in advance what they will do or what recommendations they will make based on the sampling results. The results of samples taken in your unique situation cannot be interpreted without physical inspection of the contaminated area or without considering the building’s characteristics and the factors that led to the present condition. What type of doctor should I see concerning mold exposure? You should first consult a family or general health care provider who will decide whether you need referral to a specialist. Such specialists might include an allergist who treats patients with mold allergies or an infectious disease physician who treats mold infections. If an infection is in the lungs, a pulmonary physician might be recommended. Patients who have been exposed to molds in their workplace may be referred to an occupational physician. CDC is not a clinical facility. CDC does not see patients, diagnose illness, provide treatment, prescribe medication, or provide referrals to health care providers.  Top of Page  Top of Page  Top of Page Page 4 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 6 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 5 of 8 Page ID #:604 My landlord or builder will not take any responsibility for cleaning up the mold in my home. Where can I go for help? If you feel your property owner, landlord, or builder has not been responsive to concerns you’ve expressed regarding mold exposure, you can contact your local board of health or housing authority. Applicable codes, insurance, inspection, legal, and similar issues about mold generally fall under state and local (not federal) jurisdiction. You could also review your lease or building contract and contact local or state government authorities, your insurance company, or an attorney to learn more about local codes and regulations and your legal rights. CDC does not have enforcement power in such matters, nor can we provide you with advice. You can contact your county or state health department about mold issues in your area to learn about what mold assessment and remediation services they may offer. You can find information on your state’s Indoor Air Quality program at https://www.cdc.gov/nceh/airpollution/indoor_air.htm. I’m sure that mold in my workplace is making me sick. If you believe you are ill because of exposure to mold in the building where you work, you should first consult your health care provider to determine the appropriate action to take to protect your health. Notify your employer and, if applicable, your union representative about your concern so that your employer can take action to clean up and prevent mold growth. To find out more about mold, remediation of mold, or workplace safety and health guidelines and regulations, you may also want to contact your local (city, county, or state) health department. You should also read the U.S. Environmental Protection Agency (EPA) Guidelines, Mold Remediation in Schools and Commercial Buildings, at http://www.epa.gov/mold/mold_remediation.html (http://www.epa.gov/mold/mold_remediation.html) . I am very concerned about mold in my children’s school and how it affects their health. If you believe your children are ill because of exposure to mold in their school, first consult their health care provider to determine the appropriate medical action to take. Contact the school’s administration to express your concern and to ask that they remove the mold and prevent future mold growth. If needed, you could also contact the local school board.  Top of Page  Top of Page  Top of Page Page 5 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 7 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 6 of 8 Page ID #:605 CDC is not a regulatory agency and does not have enforcement authority in local matters. Your local health department may also have information on mold, and you may want to get in touch with your state Indoor Air Quality office. Information on this office is available at https://www.cdc.gov/nceh/airpollution/indoor_air.htm. You can also read the U.S. Environmental Protection Agency (EPA) guidelines, Mold Remediation in Schools and Commercial Buildings, at http://www.epa.gov/mold/mold_remediation.html (http://www.epa.gov/mold/mold_remediation.html) . Also, see these Web sites for more indoor air quality tools for schools: • http://www.epa.gov/iaq/schools/tfs/guidtoc.html (http://www.epa.gov/iaq/schools/tfs/guidtoc.html) • http://www.epa.gov/iaq/schools/tfs/guideh.html (http://www.epa.gov/iaq/schools/tfs/guideh.html) • http://www.healthyschools.org/index.html (http://www.healthyschools.org/index.html) Select a Language: ةیبرعلا [PDF - 27 KB] Français [PDF - 232 KB] Creole [PDF - 161 KB] Português [PDF - 155 KB] 中文 [PDF - 255 KB] Tiếng Việt [PDF - 273 KB] Quick Links Air Pollution & Respiratory Health Air Quality Asthma Mold  Top of Page Page 6 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 8 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 7 of 8 Page ID #:606 (https://www.cdc.gov/Other/plugins/#pdf) What's New National Center for Environmental Health (NCEH) File Formats Help: How do I view different file formats (PDF, DOC, PPT, MPEG) on this site? (https://www.cdc.gov/Other/plugins/) Page last reviewed: July 13, 2009 Page last updated: May 22, 2014 Content source: National Center for Environmental Health Page 7 of 7CDC - Mold - General Information - Basic Facts 4/16/2017https://www.cdc.gov/mold/faqs.htm Exhibit 1 to Schrader Declaration - Page 9 Case 2:17-cv-00035-VAP-KS Document 39-3 Filed 04/17/17 Page 8 of 8 Page ID #:607 MORGAN, LEWIS & BOCKIUS LLP David L. Schrader, Bar No. 149638 david.schrader morganlewts.com Esther K. Ro, ar No. 252203 esther.ro morganlewis.com Jahmy S. raham, Bar No. 300880 iahmy.graham@morganlewis.com 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: +1.211612.2500 Fax: +1.213.612.2501 1 2 3 4 5 6 7 8 Attorneys for Defendant TOYOTA MOTOR SALES, U.S.A., INC. 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Case No. 2:17-cv-00035-VAP-KS DECLARATION OF BARRY M. HARE IN SUPPORT OF TOYOTA MOTOR SALES, U.S.A. INC.'S MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT [Notice of Motion and Motion; Memorandum of Points and Authorities; Request for Judicial Notice; and Declaration of David L. Schrader filed concurrently herewith] [[Proposed] Order lodged concurrently herewith Date: June 5, 2017 Time: 2:00 p.m. Judge: Hon. Virginia A. Phillips Ctrm.: 8A, 8th Floor 13 14 15 16 17 18 19 20 21 22 23 24 PAUL STOCKINGER, ELIZABETH STOCKINGER, GAILYN KENNEDY, BASUDEB DES' BRENDA FLINN, and ELIEZER CASPER, and YVETTE ALLEY on behalf of themselves and all others similarly situated, Plaintiffs, VS. TOYOTA MOTOR SALES, U.S.A., INC., a California corporation, Defendant. 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP AT AT LAW Los ANGEL. DB1/ 91707693.1 HARE DECLARATION ISO TOYOTA'S MOTION TO DISMISS FAC Case 2:17-cv-00035-VAP-KS Document 39-4 Filed 04/17/17 Page 1 of 4 Page ID #:608 DECLARATION OF BARRY M. HARE 1, Barry M. Hare, hereby declare as follows: 1. I am over the age of 18 and competent to sign this Declaration. I submit this Declaration in support of Toyota Motor Sales, U.S.A., Inc.'s ("Toyota") Motion to Dismiss ("Motion") Plaintiffs' First Amended Complaint ("FAC") and the Request for Judicial Notice in support of Toyota's motion. Unless otherwise specifically identified herein, I make this Declaration based on my personal knowledge. If called as a witness, I could and would testify competently to the matters stated herein. 2. I am an automotive engineer and joined Toyota in 2006, as the National Design and Technical Analysis Manager for Toyota. As of April 2016, I have been employed as the National Design and Technical Analysis Manager at Toyota Motor North America, Inc. I manage the Technical Analysis Group, and- along with other engineers- provide technical assistance and analysis as it relates to Toyota, Lexus and Scion vehicles in North America, including analysis of the field performance of these vehicles. 3. Based on my experience at Toyota, I am familiar with the Owner's Manuals, which are prepared by Toyota Motor Corporation ("TMC") and accompany Toyota and Lexus vehicles at the time of their initial retail sale. I have reviewed various owner's manuals for Toyota and Lexus vehicles in connection with my work at Toyota. Owner's Manuals provide warnings and instructions on how to operate the vehicle and explain the various features with which the vehicle is equipped. Owner's Manuals for most Toyota and Lexus vehicles are available online at http://www.toyota.com/owners/resources/owners-manuals and http://drivers.lexus.comilexusdrivers/resources/manuals-warranty, respectively. 4. Based on my experience at Toyota, I am also familiar with the Warranty and Maintenance/Services Guides, which are produced by Toyota Motor 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 DB1/ 91707693.1. HARE DECLARATION ISO TOYOTA'S MOTION TO DISMISS FAC MORGAN, LEWIS & BOCK] US LLP Case 2:17-cv-00035-VAP-KS Document 39-4 Filed 04/17/17 Page 2 of 4 Page ID #:609 Sales, U.S.A., Inc., and which accompany Toyota and Lexus vehicles at the time of their initial retail sale. Warranty and Maintenance Guides (Toyota) and Warranty and Services Guides (Lexus) provide warranty information, maintenance recommendations and requirements, and owner amenities in connection with Toyota and Lexus vehicles. Warranty and Maintenance/Services Guides for Toyota and Lexus vehicles are generally available online at http://www.toyota.com/owners/resources/owners-manuals and http://drivers.lexus.con-illexusdrivers/resources/manuals-warranty, respectively. 5. Attached hereto as Exhibit 1 is a true and correct copy of an excerpt from a representative copy of the 2011 model year Toyota Sienna Owner's Manual, available online at the Toyota.com website. 6. Attached hereto as Exhibit 2 is a true and correct copy of an excerpt from a representative copy of the 2015 model year Toyota Sienna Owner's Manual available online at the Toyota.com website. 7. Attached hereto as Exhibit 3 is a true and correct copy of an excerpt from a representative copy of the 2014 model year Toyota Prius Owner's Manual available online at the Toyota.com website. 8. Attached hereto as Exhibit 4 are true and correct copies of excerpts from a representative copy of the 2015 model year Toyota RAV4 Owner's Manual available online at the Toyota.com website. 9. Attached hereto as Exhibit 5 are true and correct copies of excerpts from a representative copy of the 2011 model year Toyota Sienna Warranty and Maintenance Guide available online at the Toyota.com website. 10. Attached hereto as Exhibit 6 are true and correct copies of excerpts from a representative copy of the 2015 model year Toyota Sienna Warranty and Maintenance Guide available online at the Toyota.com website. 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 DB1/ 91707693.1 HARE DECLARATION ISO TOYOTA'S MOTION TO DISMISS FAC MORGAN, LEWIS & BOCKIUS LLP ATIORNEVS AT LAW LOS ANGEL. Case 2:17-cv-00035-VAP-KS Document 39-4 Filed 04/17/17 Page 3 of 4 Page ID #:610 11. Attached hereto as Exhibit 7 are true and correct copies of excerpts from a representative copy of the 2014 model year Toyota Prius Warranty and Maintenance Guide available online at the Toyota.com website. 12. Attached hereto as Exhibit 8 are true and correct copies of excerpts from a representative copy of the 2015 model year Toyota RAV4 Warranty and Maintenance Guide available online at the Toyota.com website. 13. Attached hereto as Exhibit 9 are true and correct copies of excerpts from a representative copy of the 2007 model year Lexus ES 350 Warranty and Services Guide available online at the Lexus.com website. 14. Attached hereto as Exhibit 10 are true and correct copies of excerpts from a representative copy of the 2009 model year Toyota Corolla Warranty and Maintenance Guide available online at the Toyota.com website. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 13 day of April, 2017 at P I aA0 , Texas. CblA RV7vce Barry Mf Hare 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 3 DB1/ 91707693.1 HARE DECLARATION ISO TOYOTA'S MOTION TO DISMISS FAC MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES Case 2:17-cv-00035-VAP-KS Document 39-4 Filed 04/17/17 Page 4 of 4 Page ID #:611 EXHIBIT 1 2011 Toyota Sienna Owner’s Manual Excerpt Exhibit 1 to Hare Declaration Page 4 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 1 of 63 Page ID #:612 350 3-1. Using the air conditioning system and defogger SIENNA_U (OM45466U) ■Using the system in recirculated air mode The windows will fog up more easily if the recirculated air mode is used for an extended period. ■When is selected for the air outlets used For your driving comfort, air flowing to the feet may be warmer than air flow- ing to the upper body depending on the temperature setting. ■When the indicator light on flashes Press and turn off the air conditioning system before turning it on once more. There may be a problem in the air conditioning system if the indicator light continues to flash. Turn the air conditioning system off and have it inspected by your Toyota dealer. ■Air conditioning odors ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. Exhibit 1 to Hare Declaration Page 5 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 2 of 63 Page ID #:613 EXHIBIT 2 2015 Toyota Sienna Owner’s Manual Excerpt Exhibit 2 to Hare Declaration Page 6 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 3 of 63 Page ID #:614 SIENNA_OM_01999-08001_(U) 4116-1. Using the air conditioning system and defogger 6 Interior features ■Temperature display The temperature display on the multi-information display can be changed. (P. 618) ■When is selected for the air outlets used For your driving comfort, air flowing to the feet may be warmer than air flow- ing to the upper body depending on the temperature setting. ■When the outside temperature is low The dehumidification function may not operate even when the “A/C” button is pressed. ■When “A/C ON” flashes in the display Press the “A/C” button and turn off the air conditioning system before turning it on once more. There may be a problem in the air conditioning system if “A/C ON” continues to flash. Turn the air conditioning system off and have it inspected by your Toyota dealer. ■Ventilation and air conditioning odors ●To let fresh air in, set the air conditioning system to the outside air mode. ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: • It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. • The start timing of the blower may be delayed for a short period of time immediately after the air conditioning system is started in automatic mode. ■Air conditioning filter P. 501 ■Customization Settings (e.g. “AUTO” button linked operation) can be changed. (Customizable features: P. 625) Exhibit 2 to Hare Declaration Page 7 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 4 of 63 Page ID #:615 EXHIBIT 3 2014 Toyota Prius Owner’s Manual Excerpt Exhibit 3 to Hare Declaration Page 8 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 5 of 63 Page ID #:616 339 3-1. Using the air conditioning system and defogger PRIUS_OM_OM47857U_DVD_(U) 3 Interior features ■ If air flow from the vents decreases dramatically The filter may be clogged. Contact your Toyota dealer. ■Operation of the air conditioning system in Eco drive mode In the Eco drive mode, the air conditioning system is controlled as follows to prioritize fuel efficiency: ●Engine speed and compressor operation controlled to restrict heating/ cooling capacity ●Fan speed restricted when automatic mode is selected To improve air conditioning performance, perform the following operations: ●Adjust the fan speed ●Turn off Eco drive mode (P. 206) ●Customize the air conditioning control of Eco drive mode. (P. 596) ■When outside air temperature is below 32 °F (0 °C) The cooling and dehumidification function may not operate even when is pressed. ■Air conditioning odors ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: • It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. • The start timing of the blower may be delayed for a short period of time immediately after the air conditioning system is started in automatic mode. ■Customization Settings (e.g. enable/disable automatic operation of the air conditioning compressor when the “AUTO” switch ON) can be changed. (Customizable features P. 596) Exhibit 3 to Hare Declaration Page 9 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 6 of 63 Page ID #:617 EXHIBIT 4 2015 Toyota RAV4 Owner’s Manual Excerpts Exhibit 4 to Hare Declaration Page 10 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 7 of 63 Page ID #:618 RAV4_OM_OM42A78U_(U) 3055-1. Using the air conditioning system and defogger 5 Interior features ■Ventilation and air conditioning odors ●To let fresh air in, set the air conditioning system to the outside air mode. ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. ■Air conditioning filter P. 568 CAUTION ■To prevent the windshield from fogging up Do not set the air outlet selection dial to during cool air operation in extremely humid weather. The difference between the temperature of the outside air and that of the windshield can cause the outer surface of the windshield to fog up, blocking your vision. NOTICE ■To prevent battery discharge Do not leave the air conditioning system on longer than necessary when the engine is off. Exhibit 4 to Hare Declaration Page 11 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 8 of 63 Page ID #:619 RAV4_OM_OM42A78U_(U) 3155-1. Using the air conditioning system and defogger 5 Interior features ■Ventilation and air conditioning odors ●To let fresh air in, set the air conditioning system to the outside air mode. ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: • It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. • The start timing of the blower may be delayed for a short period of time immediately after the air conditioning system is started in automatic mode. ■Air conditioning filter P. 568 ■Customization Settings (e.g. outside/recirculated air mode) can be changed. (Customizable features P. 687) CAUTION ■To prevent the windshield from fogging up Do not use during cool air operation in extremely humid weather. The difference between the temperature of the outside air and that of the wind- shield can cause the outer surface of the windshield to fog up, blocking your vision. NOTICE ■To prevent battery discharge Do not leave the air conditioning system on longer than necessary when the engine is off. Exhibit 4 to Hare Declaration Page 12 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 9 of 63 Page ID #:620 RAV4_OM_OM42A17U_(U) 3055-1. Using the air conditioning system and defogger 5 Interior features ■Ventilation and air conditioning odors ●To let fresh air in, set the air conditioning system to the outside air mode. ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. ■Air conditioning filter P. 568 CAUTION ■To prevent the windshield from fogging up Do not set the air outlet selection dial to during cool air operation in extremely humid weather. The difference between the temperature of the outside air and that of the windshield can cause the outer surface of the windshield to fog up, blocking your vision. NOTICE ■To prevent battery discharge Do not leave the air conditioning system on longer than necessary when the engine is off. Exhibit 4 to Hare Declaration Page 13 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 10 of 63 Page ID #:621 RAV4_OM_OM42A17U_(U) 3155-1. Using the air conditioning system and defogger 5 Interior features ■Ventilation and air conditioning odors ●To let fresh air in, set the air conditioning system to the outside air mode. ●During use, various odors from inside and outside the vehicle may enter into and accumulate in the air conditioning system. This may then cause odor to be emitted from the vents. ●To reduce potential odors from occurring: • It is recommended that the air conditioning system be set to outside air mode prior to turning the vehicle off. • The start timing of the blower may be delayed for a short period of time immediately after the air conditioning system is started in automatic mode. ■Air conditioning filter P. 568 ■Customization Settings (e.g. outside/recirculated air mode) can be changed. (Customizable features P. 691) CAUTION ■To prevent the windshield from fogging up Do not use during cool air operation in extremely humid weather. The difference between the temperature of the outside air and that of the wind- shield can cause the outer surface of the windshield to fog up, blocking your vision. NOTICE ■To prevent battery discharge Do not leave the air conditioning system on longer than necessary when the engine is off. Exhibit 4 to Hare Declaration Page 14 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 11 of 63 Page ID #:622 EXHIBIT 5 2011 Toyota Sienna Warranty and Maintenance Guide Excerpts Exhibit 5 to Hare Declaration Page 15 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 12 of 63 Page ID #:623 WARRANTY & MAINTENANCE GUIDE www.toyota.com If your nam e or address has changed or you purchased your Toyota as a used vehicle, please com plete and m ail the attached card, even if your w arranty coverage has expired. This w ill enable Toyota to contact you w ith im portant product or safety updates concerning your vehicle. If the card is no longer attached, please call the Toyota Custom er Experience Center at (800) 331-4331. 00505-11WMG-SIE Printed in U.S.A. 2/10 10-TCS-04103 SIENNA 2 0 1 1 Check one: Sam e ow ner, nam e and/or address has changed New ow ner, purchased vehicle used Sam e ow ner, additional driver w ho should receive product/safety updates M r. M rs. M s. M iss Dr. First nam e M .I. Last nam e Com pany nam e Street address or P.O. Box Apt. or suite num ber City State Zip code - This inform ation is obtained solely for the use of Toyota M otor Sales, U.S.A., Inc. Toyota occasionally sends special prom otional offers to registered ow ners. Check here if you prefer not to receive these offers. Vehicle Identification Num ber (required to process change) M o. Day Year / / Effective date of this inform ation Prim ary phone num ber - - Alternate phone num ber - - E-m ail address E V V OW N ER IN FORM ATION CHAN GE FORM Check here if address below is for com pany IMPORTANT: Your vehicle is certifi ed for Synthetic (0W-20) motor oil. Refer to the Maintenance Information section of this booklet. 10-TCS-04103_WarrMaintGuide_SiennaMY11_1_0F_lm.indd 1 2/24/10 3:21 PM Exhibit 5 to Hare Declaration Page 16 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 13 of 63 Page ID #:624 JOBNAME: 295251-2011-sna-toyw PAGE: 11 SESS: 11 OUTPUT: Tue Feb 23 16:43:08 2010 /tweddle/toyota/sched-maint/295251-en-sna/wg Who Is the Warrantor The warrantor for these limited warranties is Toyota Motor Sales, U.S.A., Inc. (“Toyota”), 19001 South Western Avenue, Torrance, California 90509-2991, a California corporation. Which Vehicles Are Covered These warranties apply to all 2011 model year Sienna vehicles distributed by Toyota that are originally sold by an authorized dealer in the United States and normally operated or touring in the United States, U.S. territories or Canada. Warranty coverage is automatically transferred at no cost to subsequent vehicle owners. Multiple Warranty Conditions This booklet contains warranty terms and conditions that may vary depending on the part covered. A warranty for specific parts or systems, such as the Powertrain Warranty or Emission Performance Warranty, is governed by the coverage set forth in that warranty as well as the General Warranty Provisions. When Warranty Begins The warranty period begins on the vehicle’s in-service date, which is the first date the vehicle is either delivered to an ultimate purchaser, leased, or used as a company car or demonstrator. Repairs Made at No Charge Repairs and adjustments covered by these warranties are made at no charge for parts and labor. Parts Replacement Any needed parts replacement will be made using new or remanufactured parts. The decision whether a part should be repaired or replaced will be made by the servicing Toyota dealership and/or Toyota. Parts scheduled to be replaced as required maintenance are warranted until their first replacement only. Limitations The performance of necessary repairs and adjustments is the exclusive remedy under these warranties or any implied warranties. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of these written warranties. Some states do not allow restrictions on how long an implied warranty lasts, so this limitation may not apply to you. Your Rights Under State Law These warranties give you specific legal rights. You may also have other rights that vary from state to state. General Warranty Provisions W A R R A N T Y Your Warranties in Detail 11 Exhibit 5 to Hare Declaration Page 17 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 14 of 63 Page ID #:625 JOBNAME: 295251-2011-sna-toyw PAGE: 12 SESS: 12 OUTPUT: Tue Feb 23 16:43:08 2010 /tweddle/toyota/sched-maint/295251-en-sna/wg WHAT IS COVERED AND HOW LONG Basic Warranty This warranty covers repairs and adjustments needed to correct defects in materials or workmanship of any part supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 13-14. Coverage is for 36 months or 36,000 miles, whichever occurs first, with the exception of wheel alignment and wheel balancing, which are covered for 12 months or 20,000 miles, whichever occurs first. Powertrain Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any component listed below and in the next column and supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 13-14. Coverage is for 60 months or 60,000 miles, whichever occurs first. Engine Cylinder block and head and all internal parts, timing gears and gaskets, timing chain/belt and cover, flywheel, valve covers, oil pan, oil pump, engine mounts, turbocharger housing and all internal parts, supercharger housing and all internal parts, engine control computer, water pump, fuel pump, seals and gaskets. Transmission and Transaxle Case and all internal parts, torque converter, clutch cover, transmission mounts, transfer case and all internal parts, engine control computer, seals and gaskets. Front-Wheel-Drive System Final drive housing and all internal parts, axle shafts, drive shafts, constant velocity joints, front hub and bearings, seals and gaskets. Rear-Wheel-Drive System Axle housing and all internal parts, propeller shafts, U-joints, axle shafts, drive shafts, bearings, supports, seals and gaskets. Restraint Systems Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any seatbelt or air bag system supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 13-14. Coverage is for 60 months or 60,000 miles, whichever occurs first. For vehicles sold and registered in the state of Kansas, the warranty for seatbelts and related components is 10 years, regardless of mileage. New Vehicle Limited Warranty W A R R A N T Y 12 Your Warranties in Detail Exhibit 5 to Hare Declaration Page 18 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 15 of 63 Page ID #:626 JOBNAME: 295251-2011-sna-toyw PAGE: 13 SESS: 12 OUTPUT: Tue Feb 23 16:43:08 2010 /tweddle/toyota/sched-maint/295251-en-sna/wg Corrosion Perforation Warranty This warranty covers repair or replacement of any original body panel that develops perforation from corrosion (rust-through), subject to the exceptions indicated under “What Is Not Covered” on pages 13-14. Coverage is for 60 months, regardless of mileage. For information on how to protect your vehicle from corrosion, see the section entitled “Corrosion Prevention and Appearance Care” in the Owner’s Manual. Towing When your vehicle is inoperable due to failure of a warranted part, towing service to the nearest authorized Toyota dealership is covered. WHAT IS NOT COVERED This warranty does not cover damage or failures resulting directly or indirectly from any of the following: • Fire, accidents or theft • Abuse or negligence • Misuse - for example, racing or overloading • Improper repairs • Alteration or tampering, including installation of non-Genuine Toyota Accessories • Lack of or improper maintenance, including use of fluids other than those specified in the Owner’s Manual • Installation of non-Genuine Toyota Parts • Airborne chemicals, tree sap, road debris (including stone chips), rail dust, salt, hail, floods, wind storms, lightning and other environmental conditions • Water contamination This warranty also does not cover the following: Tires Tires are covered by a separate warranty provided by the tire manufacturer. See page 28. Normal Wear and Tear Noise, vibration, cosmetic conditions and other deterioration caused by normal wear and tear. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 13 Exhibit 5 to Hare Declaration Page 19 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 16 of 63 Page ID #:627 JOBNAME: 295251-2011-sna-toyw PAGE: 14 SESS: 11 OUTPUT: Tue Feb 23 16:43:08 2010 /tweddle/toyota/sched-maint/295251-en-sna/wg Maintenance Expense Normal maintenance services such as: • Engine tune-ups • Replacement of fluids and filters • Lubrication • Cleaning and polishing • Replacement of spark plugs and fuses • Replacement of worn wiper blades, brake pads/linings and clutch linings Vehicles With Altered Odometer Failure of a vehicle on which the odometer has been altered so that actual vehicle mileage cannot be readily determined. Salvage or Total-Loss Vehicles Any vehicle that has ever been issued a “salvage” title or similar title under any state’s law; or has ever been declared a “total loss” or equivalent by a financial institution or insurer, such as by payment for a claim in lieu of repairs because the cost of repairs exceeded the cash value of the vehicle. This exclusion does not apply to the emission control warranties. Incidental Damages Incidental or consequential damages associated with a vehicle failure. Such damages include but are not limited to inconvenience; the cost of transportation, telephone calls and lodging; the loss of personal or commercial property; and the loss of pay or revenue. Disclaimer of Extra Expenses and Damages The performance of necessary repairs and adjustments is the exclusive remedy under this warranty or any implied warranty. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Toyota shall not be liable for incidental or consequential damages resulting from breach of this written warranty or any implied warranty. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of this written warranty, except in states where this limitation is not allowed. New Vehicle Limited Warranty W A R R A N T Y 14 Your Warranties in Detail Exhibit 5 to Hare Declaration Page 20 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 17 of 63 Page ID #:628 JOBNAME: 295251-2011-sna-toyw PAGE: 15 SESS: 12 OUTPUT: Tue Feb 23 16:43:08 2010 /tweddle/toyota/sched-maint/295251-en-sna/wg DISPUTE RESOLUTION If a dispute arises regarding your warranty coverage, please follow the steps described under “If You Need Assistance” on pages 8-9. Please note that you must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act. You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check the appropriate page of the Owner’s Warranty Rights Notification booklet (located in your glove box) for the requirements applicable to your state. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 15 Exhibit 5 to Hare Declaration Page 21 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 18 of 63 Page ID #:629 EXHIBIT 6 2015 Toyota Sienna Warranty and Maintenance Guide Excerpts Exhibit 6 to Hare Declaration Page 22 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 19 of 63 Page ID #:630 Who Is the Warrantor The warrantor for these limited warranties is Toyota Motor Sales, U.S.A., Inc. (“Toyota”), 19001 South Western Avenue, Torrance, California 90509-2991, a California corporation. Which Vehicles Are Covered These warranties apply to all 2015 model year Sienna vehicles distributed by Toyota that are originally sold by an authorized dealer in the United States and normally operated or touring in the United States, U.S. territories or Canada. Warranty coverage is automatically transferred at no cost to subsequent vehicle owners. Multiple Warranty Conditions This booklet contains warranty terms and conditions that may vary depending on the part covered. A warranty for specific parts or systems, such as the Powertrain Warranty or Emission Performance Warranty, is governed by the coverage set forth in that warranty as well as the General Warranty Provisions. When Warranty Begins The warranty period begins on the vehicle’s in-service date, which is the first date the vehicle is either delivered to an ultimate purchaser, leased, or used as a company car or demonstrator. Repairs Made at No Charge Repairs and adjustments covered by these warranties are made at no charge for parts and labor. Parts Replacement Any needed parts replacement will be made using new or remanufactured parts. The decision whether a part should be repaired or replaced will be made by the servicing Toyota dealership and/or Toyota. Parts scheduled to be replaced as required maintenance are warranted until their first replacement only. Important: You must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act (the “Act”). However, if you choose to pursue rights and remedies not created by the Act, you are not required to use the Dispute Settlement Program (CDSP). You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check this booklet and the appropriate page of the Owner’s Warranty Rights Notification booklet for additional information and the requirements applicable to your state. General Warranty Provisions W A R R A N T Y 10 Your Warranties in Detail Exhibit 6 to Hare Declaration Page 23 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 20 of 63 Page ID #:631 Informal Dispute Settlement Program Toyota offers assistance through an informal dispute settlement program called the Dispute Settlement Program. This program is administered by an independent third party: National Center for Dispute Settlement P.O. Box 688 Mt. Clemens, MI 48046 Further information about this program can be found in this booklet and the Owner’s Warranty Rights Notification booklet. California residents: Toyota offers you assistance through an informal dispute settlement program called the California Dispute Settlement Program (CDSP). A brochure about the program is found in your glove box. For additional information, call the Toyota Customer Experience Center at (800) 331-4331. You may also contact the CDSP directly at (888) 300-6237. Failure to use the CDSP may affect your rights and remedies under California’s “Lemon Laws.” Limitations The performance of necessary repairs and adjustments is the exclusive remedy under these warranties or any implied warranties. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of these written warranties. Some states do not allow restrictions on how long an implied warranty lasts, so this limitation may not apply to you. Your Rights Under State Law These warranties give you specific legal rights. You may also have other rights that vary from state to state. General Warranty Provisions W A R R A N T Y Your Warranties in Detail 11 Exhibit 6 to Hare Declaration Page 24 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 21 of 63 Page ID #:632 WARRANTY COVERAGE AT A GLANCE General Warranty Provisions W A R R A N T Y 12 Your Warranties in Detail Exhibit 6 to Hare Declaration Page 25 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 22 of 63 Page ID #:633 WHAT IS COVERED AND HOW LONG Basic Warranty This warranty covers repairs and adjustments needed to correct defects in materials or workmanship of any part supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 36 months or 36,000 miles, whichever occurs first, with the exception of wheel alignment and wheel balancing, which are covered for 12 months or 12,000 miles, whichever occurs first. Powertrain Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any component listed below and in the next column and supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 60 months or 60,000 miles, whichever occurs first. Engine Cylinder block and head and all internal parts, timing gears and gaskets, timing chain/belt and cover, flywheel, valve covers, oil pan, oil pump, engine mounts, turbocharger housing and all internal parts, supercharger housing and all internal parts, engine control computer, water pump, fuel pump, seals and gaskets. Transmission and Transaxle Case and all internal parts, torque converter, clutch cover, transmission mounts, transfer case and all internal parts, engine control computer, seals and gaskets. Front-Wheel-Drive System Final drive housing and all internal parts, axle shafts, drive shafts, constant velocity joints, front hub and bearings, seals and gaskets. Rear-Wheel-Drive System Axle housing and all internal parts, propeller shafts, U-joints, axle shafts, drive shafts, bearings, supports, seals and gaskets. Restraint Systems Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any seatbelt or air bag system supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 60 months or 60,000 miles, whichever occurs first. For vehicles sold and registered in the state of Kansas, the warranty for seatbelts and related components is 10 years, regardless of mileage. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 13 Exhibit 6 to Hare Declaration Page 26 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 23 of 63 Page ID #:634 Corrosion Perforation Warranty This warranty covers repair or replacement of any original body panel that develops perforation from corrosion (rust-through), subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 60 months, regardless of mileage. For information on how to protect your vehicle from corrosion, see the section entitled “Corrosion Prevention and Appearance Care” in the Owner’s Manual. Towing When your vehicle is inoperable due to failure of a warranted part, towing service to the nearest authorized Toyota dealership is covered. WHAT IS NOT COVERED This warranty does not cover damage or failures resulting directly or indirectly from any of the following: • Fire, accidents or theft • Abuse or negligence • Misuse - for example, racing or overloading • Improper repairs • Alteration or tampering, including installation of non-Genuine Toyota Accessories • Lack of or improper maintenance, including use of fluids other than those specified in the Owner’s Manual • Installation of non-Genuine Toyota Parts • Airborne chemicals, tree sap, road debris (including stone chips), rail dust, salt, hail, floods, wind storms, lightning and other environmental conditions • Water contamination This warranty also does not cover the following: Tires Tires are covered by a separate warranty provided by the tire manufacturer. See page 29. Normal Wear and Tear Noise, vibration, cosmetic conditions and other deterioration caused by normal wear and tear. New Vehicle Limited Warranty W A R R A N T Y 14 Your Warranties in Detail Exhibit 6 to Hare Declaration Page 27 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 24 of 63 Page ID #:635 Maintenance Expense Normal maintenance services such as: • Engine tune-ups • Replacement of fluids and filters • Lubrication • Cleaning and polishing • Replacement of spark plugs and fuses • Replacement of worn wiper blades, brake pads/linings and clutch linings Vehicles With Altered Odometer Failure of a vehicle on which the odometer has been altered so that actual vehicle mileage cannot be readily determined. Salvage or Total-Loss Vehicles Any vehicle that has ever been issued a “salvage” title or similar title under any state’s law; or has ever been declared a “total loss” or equivalent by a financial institution or insurer, such as by payment for a claim in lieu of repairs because the cost of repairs exceeded the cash value of the vehicle. This exclusion does not apply to the emission control warranties. Incidental Damages Incidental or consequential damages associated with a vehicle failure. Such damages include but are not limited to inconvenience; the cost of transportation, telephone calls and lodging; the loss of personal or commercial property; and the loss of pay or revenue. Disclaimer of Extra Expenses and Damages The performance of necessary repairs and adjustments is the exclusive remedy under this warranty or any implied warranty. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Toyota shall not be liable for incidental or consequential damages resulting from breach of this written warranty or any implied warranty. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of this written warranty, except in states where this limitation is not allowed. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 15 Exhibit 6 to Hare Declaration Page 28 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 25 of 63 Page ID #:636 DISPUTE RESOLUTION If a dispute arises regarding your warranty coverage, please follow the steps described under “If You Need Assistance” on page 5. Please note that you must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act. You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check the appropriate page of the Owner’s Warranty Rights Notification booklet (located in your glove box) for the requirements applicable to your state. New Vehicle Limited Warranty W A R R A N T Y 16 Your Warranties in Detail Exhibit 6 to Hare Declaration Page 29 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 26 of 63 Page ID #:637 EXHIBIT 7 2014 Toyota Prius Warranty and Maintenance Guide Excerpts Exhibit 7 to Hare Declaration - Page 30 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 27 of 63 Page ID #:638 Warranty & MaIntEnanCE GUIDE www.toyota.com If your nam e or address has changed or you purchased your Toyota as a used vehicle, please com plete and m ail the attached card, even if your w arranty coverage has expired. This w ill enable Toyota to contact you w ith im portant product or safety updates concerning your vehicle. If the card is no longer attached, please call the Toyota Custom er Experience Center at (800) 331-4331. 00505-14WMG-PrI Printed in U.S.a. 9/13 13-tCS-06768 Check one: Sam e ow ner, nam e and/or address has changed New ow ner, purchased vehicle used Sam e ow ner, additional driver w ho should receive product/safety updates M r. M rs. M s. M iss Dr. First nam e M .I. Last nam e Com pany nam e Street address or P.O. Box Apt. or suite num ber City State Zip code - This inform ation is obtained solely for the use of Toyota M otor Sales, U.S.A., Inc. Toyota occasionally sends special prom otional offers to registered ow ners. Check here if you prefer not to receive these offers. Vehicle Identification Num ber (required to process change) M o. Day Year / / Effective date of this inform ation Prim ary phone num ber - - Alternate phone num ber - - E-m ail address E V V Ow n Er In fOrm aTIOn Chan gE fOrm Check here if address below is for com pany 2 0 1 4 Prius Exhibit 7 to Hare Declaration - Page 31 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 28 of 63 Page ID #:639 JOBNAME: 1491135-2014-priWG-E PAGE: 10 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg Who Is the Warrantor The warrantor for these limited warranties is Toyota Motor Sales, U.S.A., Inc. (“Toyota”), 19001 South Western Avenue, Torrance, California 90509-2991, a California corporation. Which Vehicles Are Covered These warranties apply to all 2014 model year Prius vehicles distributed by Toyota that are originally sold by an authorized dealer in the United States and normally operated or touring in the United States, U.S. territories or Canada. Warranty coverage is automatically transferred at no cost to subsequent vehicle owners. Multiple Warranty Conditions This booklet contains warranty terms and conditions that may vary depending on the part covered. A warranty for specific parts or systems, such as the Powertrain Warranty or Emission Performance Warranty, is governed by the coverage set forth in that warranty as well as the General Warranty Provisions. When Warranty Begins The warranty period begins on the vehicle’s in-service date, which is the first date the vehicle is either delivered to an ultimate purchaser, leased, or used as a company car or demonstrator. Repairs Made at No Charge Repairs and adjustments covered by these warranties are made at no charge for parts and labor. Parts Replacement Any needed parts replacement will be made using new or remanufactured parts. The decision whether a part should be repaired or replaced will be made by the servicing Toyota dealership and/or Toyota. Parts scheduled to be replaced as required maintenance are warranted until their first replacement only. Important: You must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act (the “Act”). However, if you choose to pursue rights and remedies not created by the Act, you are not required to use the Dispute Settlement Program (CDSP). You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check this booklet and the appropriate page of the Owner’s Warranty Rights Notification booklet for additional information and the requirements applicable to your state. General Warranty Provisions W A R R A N T Y 10 Your Warranties in Detail Exhibit 7 to Hare Declaration - Page 32 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 29 of 63 Page ID #:640 JOBNAME: 1491135-2014-priWG-E PAGE: 11 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg Informal Dispute Settlement Program Toyota offers assistance through an informal dispute settlement program called the Dispute Settlement Program. This program is administered by an independent third party: National Center for Dispute Settlement P.O. Box 688 Mt. Clemens, MI 48046 Further information about this program can be found in this booklet and the Owner’s Warranty Rights Notification booklet. California residents: Toyota offers you assistance through an informal dispute settlement program called the California Dispute Settlement Program (CDSP). A brochure about the program is found in your glove box. For additional information, call the Toyota Customer Experience Center at (800) 331-4331. You may also contact the CDSP directly at (888) 300-6237. Failure to use the CDSP may affect your rights and remedies under California’s “Lemon Laws.” Limitations The performance of necessary repairs and adjustments is the exclusive remedy under these warranties or any implied warranties. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of these written warranties. Some states do not allow restrictions on how long an implied warranty lasts, so this limitation may not apply to you. Your Rights Under State Law These warranties give you specific legal rights. You may also have other rights that vary from state to state. General Warranty Provisions W A R R A N T Y Your Warranties in Detail 11 Exhibit 7 to Hare Declaration - Page 33 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 30 of 63 Page ID #:641 JOBNAME: 1491135-2014-priWG-E PAGE: 12 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg WARRANTY COVERAGE AT A GLANCE General Warranty Provisions W A R R A N T Y 12 Your Warranties in Detail Exhibit 7 to Hare Declaration - Page 34 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 31 of 63 Page ID #:642 JOBNAME: 1491135-2014-priWG-E PAGE: 13 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg General Warranty Provisions W A R R A N T Y Your Warranties in Detail 13 Exhibit 7 to Hare Declaration - Page 35 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 32 of 63 Page ID #:643 JOBNAME: 1491135-2014-priWG-E PAGE: 14 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg WHAT IS COVERED AND HOW LONG Basic Warranty This warranty covers repairs and adjustments needed to correct defects in materials or workmanship of any part supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 15-16. Coverage is for 36 months or 36,000 miles, whichever occurs first, with the exception of wheel alignment and wheel balancing, which are covered for 12 months or 12,000 miles, whichever occurs first. Hybrid System Warranty This warranty covers repairs needed to correct defects in materials or workmanship of the components listed here and supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 15-16. • Battery control module (battery voltage sensor) • Hybrid battery • Hybrid control module (power management control module) • Inverter with converter Coverage is for 96 months or 100,000 miles, whichever occurs first. Powertrain Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any component listed below and in the next column and supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 15-16. Coverage is for 60 months or 60,000 miles, whichever occurs first. Engine Cylinder block and head and all internal parts, timing gears and gaskets, timing chain/belt and cover, valve covers, oil pan, oil pump, engine mounts, engine control computer, water pump, fuel pump, seals and gaskets. Transaxle/Motor/Generator Case and all internal parts, transaxle mounts, seals and gaskets. Front-Wheel-Drive System Final drive housing and all internal parts, axle shafts, drive shafts, constant velocity joints, front hub and bearings, seals and gaskets. New Vehicle Limited Warranty W A R R A N T Y 14 Your Warranties in Detail Exhibit 7 to Hare Declaration - Page 36 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 33 of 63 Page ID #:644 JOBNAME: 1491135-2014-priWG-E PAGE: 15 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg Restraint Systems Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any seatbelt or air bag system supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 15-16. Coverage is for 60 months or 60,000 miles, whichever occurs first. For vehicles sold and registered in the state of Kansas, the warranty for seatbelts and related components is 10 years, regardless of mileage. Corrosion Perforation Warranty This warranty covers repair or replacement of any original body panel that develops perforation from corrosion (rust-through), subject to the exceptions indicated under “What Is Not Covered” on pages 15-16. Coverage is for 60 months, regardless of mileage. For information on how to protect your vehicle from corrosion, see the section entitled “Corrosion Prevention and Appearance Care” in the Owner’s Manual. Towing When your vehicle is inoperable due to failure of a warranted part, towing service to the nearest authorized Toyota dealership is covered. WHAT IS NOT COVERED This warranty does not cover damage or failures resulting directly or indirectly from any of the following: • Fire, accidents or theft • Abuse or negligence • Misuse - for example, racing or overloading • Improper repairs • Alteration or tampering, including installation of non-Genuine Toyota Accessories • Lack of or improper maintenance, including use of fluids other than those specified in the Owner’s Manual • Installation of non-Genuine Toyota Parts • Airborne chemicals, tree sap, road debris (including stone chips), rail dust, salt, hail, floods, wind storms, lightning and other environmental conditions • Water contamination This warranty also does not cover the following: Tires Tires are covered by a separate warranty provided by the tire manufacturer. See page 30. Normal Wear and Tear Noise, vibration, cosmetic conditions and other deterioration caused by normal wear and tear. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 15 Exhibit 7 to Hare Declaration - Page 37 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 34 of 63 Page ID #:645 JOBNAME: 1491135-2014-priWG-E PAGE: 16 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg Maintenance Expense Normal maintenance services such as: • Engine tune-ups • Replacement of fluids and filters • Lubrication • Cleaning and polishing • Replacement of spark plugs and fuses • Replacement of worn wiper blades, brake pads/linings and clutch linings Vehicles With Altered Odometer Failure of a vehicle on which the odometer has been altered so that actual vehicle mileage cannot be readily determined. Salvage or Total-Loss Vehicles Any vehicle that has ever been issued a “salvage” title or similar title under any state’s law; or has ever been declared a “total loss” or equivalent by a financial institution or insurer, such as by payment for a claim in lieu of repairs because the cost of repairs exceeded the cash value of the vehicle. This exclusion does not apply to the emission control warranties. Incidental Damages Incidental or consequential damages associated with a vehicle failure. Such damages include but are not limited to inconvenience; the cost of transportation, telephone calls and lodging; the loss of personal or commercial property; and the loss of pay or revenue. Disclaimer of Extra Expenses and Damages The performance of necessary repairs and adjustments is the exclusive remedy under this warranty or any implied warranty. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Toyota shall not be liable for incidental or consequential damages resulting from breach of this written warranty or any implied warranty. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of this written warranty, except in states where this limitation is not allowed. New Vehicle Limited Warranty W A R R A N T Y 16 Your Warranties in Detail Exhibit 7 to Hare Declaration - Page 38 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 35 of 63 Page ID #:646 JOBNAME: 1491135-2014-priWG-E PAGE: 17 SESS: 11 OUTPUT: Mon Sep 9 08:36:08 2013 /tweddle/toyota/sched-maint/1491135-en-pri/wg DISPUTE RESOLUTION If a dispute arises regarding your warranty coverage, please follow the steps described under “If You Need Assistance” on page 5. Please note that you must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act. You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check the appropriate page of the Owner’s Warranty Rights Notification booklet (located in your glove box) for the requirements applicable to your state. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 17 Exhibit 7 to Hare Declaration - Page 39 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 36 of 63 Page ID #:647 EXHIBIT 8 2015 Toyota RAV4 Warranty and Maintenance Guide Excerpts Exhibit 8 to Hare Declaration - Page 40 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 37 of 63 Page ID #:648 Who Is the Warrantor The warrantor for these limited warranties is Toyota Motor Sales, U.S.A., Inc. (“Toyota”), 19001 South Western Avenue, Torrance, California 90509-2991, a California corporation. Which Vehicles Are Covered These warranties apply to all 2015 model year RAV4 vehicles distributed by Toyota that are originally sold by an authorized dealer in the United States and normally operated or touring in the United States, U.S. territories or Canada. Warranty coverage is automatically transferred at no cost to subsequent vehicle owners. Multiple Warranty Conditions This booklet contains warranty terms and conditions that may vary depending on the part covered. A warranty for specific parts or systems, such as the Powertrain Warranty or Emission Performance Warranty, is governed by the coverage set forth in that warranty as well as the General Warranty Provisions. When Warranty Begins The warranty period begins on the vehicle’s in-service date, which is the first date the vehicle is either delivered to an ultimate purchaser, leased, or used as a company car or demonstrator. Repairs Made at No Charge Repairs and adjustments covered by these warranties are made at no charge for parts and labor. Parts Replacement Any needed parts replacement will be made using new or remanufactured parts. The decision whether a part should be repaired or replaced will be made by the servicing Toyota dealership and/or Toyota. Parts scheduled to be replaced as required maintenance are warranted until their first replacement only. Important: You must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act (the “Act”). However, if you choose to pursue rights and remedies not created by the Act, you are not required to use the Dispute Settlement Program (CDSP). You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check this booklet and the appropriate page of the Owner’s Warranty Rights Notification booklet for additional information and the requirements applicable to your state. General Warranty Provisions W A R R A N T Y 10 Your Warranties in Detail Exhibit 8 to Hare Declaration - Page 41 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 38 of 63 Page ID #:649 Informal Dispute Settlement Program Toyota offers assistance through an informal dispute settlement program called the Dispute Settlement Program. This program is administered by an independent third party: National Center for Dispute Settlement P.O. Box 688 Mt. Clemens, MI 48046 Further information about this program can be found in this booklet and the Owner’s Warranty Rights Notification booklet. California residents: Toyota offers you assistance through an informal dispute settlement program called the California Dispute Settlement Program (CDSP). A brochure about the program is found in your glove box. For additional information, call the Toyota Customer Experience Center at (800) 331-4331. You may also contact the CDSP directly at (888) 300-6237. Failure to use the CDSP may affect your rights and remedies under California’s “Lemon Laws.” Limitations The performance of necessary repairs and adjustments is the exclusive remedy under these warranties or any implied warranties. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of these written warranties. Some states do not allow restrictions on how long an implied warranty lasts, so this limitation may not apply to you. Your Rights Under State Law These warranties give you specific legal rights. You may also have other rights that vary from state to state. General Warranty Provisions W A R R A N T Y Your Warranties in Detail 11 Exhibit 8 to Hare Declaration - Page 42 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 39 of 63 Page ID #:650 WARRANTY COVERAGE AT A GLANCE General Warranty Provisions W A R R A N T Y 12 Your Warranties in Detail Exhibit 8 to Hare Declaration - Page 43 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 40 of 63 Page ID #:651 WHAT IS COVERED AND HOW LONG Basic Warranty This warranty covers repairs and adjustments needed to correct defects in materials or workmanship of any part supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 36 months or 36,000 miles, whichever occurs first, with the exception of wheel alignment and wheel balancing, which are covered for 12 months or 12,000 miles, whichever occurs first. Powertrain Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any component listed below and in the next column and supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 60 months or 60,000 miles, whichever occurs first. Engine Cylinder block and head and all internal parts, timing gears and gaskets, timing chain/belt and cover, flywheel, valve covers, oil pan, oil pump, engine mounts, turbocharger housing and all internal parts, supercharger housing and all internal parts, engine control computer, water pump, fuel pump, seals and gaskets. Transmission and Transaxle Case and all internal parts, torque converter, clutch cover, transmission mounts, transfer case and all internal parts, engine control computer, seals and gaskets. Front-Wheel-Drive System Final drive housing and all internal parts, axle shafts, drive shafts, constant velocity joints, front hub and bearings, seals and gaskets. Rear-Wheel-Drive System Axle housing and all internal parts, propeller shafts, U-joints, axle shafts, drive shafts, bearings, supports, seals and gaskets. Restraint Systems Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any seatbelt or air bag system supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 60 months or 60,000 miles, whichever occurs first. For vehicles sold and registered in the state of Kansas, the warranty for seatbelts and related components is 10 years, regardless of mileage. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 13 Exhibit 8 to Hare Declaration - Page 44 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 41 of 63 Page ID #:652 Corrosion Perforation Warranty This warranty covers repair or replacement of any original body panel that develops perforation from corrosion (rust-through), subject to the exceptions indicated under “What Is Not Covered” on pages 14-15. Coverage is for 60 months, regardless of mileage. For information on how to protect your vehicle from corrosion, see the section entitled “Corrosion Prevention and Appearance Care” in the Owner’s Manual. Towing When your vehicle is inoperable due to failure of a warranted part, towing service to the nearest authorized Toyota dealership is covered. WHAT IS NOT COVERED This warranty does not cover damage or failures resulting directly or indirectly from any of the following: • Fire, accidents or theft • Abuse or negligence • Misuse - for example, racing or overloading • Improper repairs • Alteration or tampering, including installation of non-Genuine Toyota Accessories • Lack of or improper maintenance, including use of fluids other than those specified in the Owner’s Manual • Installation of non-Genuine Toyota Parts • Airborne chemicals, tree sap, road debris (including stone chips), rail dust, salt, hail, floods, wind storms, lightning and other environmental conditions • Water contamination This warranty also does not cover the following: Tires Tires are covered by a separate warranty provided by the tire manufacturer. See page 29. Normal Wear and Tear Noise, vibration, cosmetic conditions and other deterioration caused by normal wear and tear. New Vehicle Limited Warranty W A R R A N T Y 14 Your Warranties in Detail Exhibit 8 to Hare Declaration - Page 45 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 42 of 63 Page ID #:653 Maintenance Expense Normal maintenance services such as: • Engine tune-ups • Replacement of fluids and filters • Lubrication • Cleaning and polishing • Replacement of spark plugs and fuses • Replacement of worn wiper blades, brake pads/linings and clutch linings Vehicles With Altered Odometer Failure of a vehicle on which the odometer has been altered so that actual vehicle mileage cannot be readily determined. Salvage or Total-Loss Vehicles Any vehicle that has ever been issued a “salvage” title or similar title under any state’s law; or has ever been declared a “total loss” or equivalent by a financial institution or insurer, such as by payment for a claim in lieu of repairs because the cost of repairs exceeded the cash value of the vehicle. This exclusion does not apply to the emission control warranties. Incidental Damages Incidental or consequential damages associated with a vehicle failure. Such damages include but are not limited to inconvenience; the cost of transportation, telephone calls and lodging; the loss of personal or commercial property; and the loss of pay or revenue. Disclaimer of Extra Expenses and Damages The performance of necessary repairs and adjustments is the exclusive remedy under this warranty or any implied warranty. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Toyota shall not be liable for incidental or consequential damages resulting from breach of this written warranty or any implied warranty. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of this written warranty, except in states where this limitation is not allowed. New Vehicle Limited Warranty W A R R A N T Y Your Warranties in Detail 15 Exhibit 8 to Hare Declaration - Page 46 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 43 of 63 Page ID #:654 DISPUTE RESOLUTION If a dispute arises regarding your warranty coverage, please follow the steps described under “If You Need Assistance” on page 5. Please note that you must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act. You may also be required to use the Dispute Settlement Program or CDSP before seeking remedies under the “Lemon Laws” of your state. Please check the appropriate page of the Owner’s Warranty Rights Notification booklet (located in your glove box) for the requirements applicable to your state. New Vehicle Limited Warranty W A R R A N T Y 16 Your Warranties in Detail Exhibit 8 to Hare Declaration - Page 47 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 44 of 63 Page ID #:655 EXHIBIT 9 2007 Lexus ES 350 Warranty and Services Guide Excerpts Exhibit 9 to Hare Declaration - Page 48 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 45 of 63 Page ID #:656 Warranty and Services Guide 00505-07LWB 7/06 Owner Amenities Warranty Information Maintenance Requirements 2 0 0 7 ES, GS, IS, LS, SC THE PASSIONATE PURSUIT OF PERFECTION. Exhibit 9 to Hare Declaration - Page 49 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 46 of 63 Page ID #:657 WARRANTY COVERAGES AT A GLANCE Introduction 15 W A R R A N T Y N ew V eh ic le L im ite d W ar ra nt y Ba sic Po we rtr ai n Sp ec ific C om po ne nt s Re str ai nt S ys te m s C or ro sio n Pe rfo ra tio n D ef ec t Pe rfo rm an ce Pe rfo rm an ce Lo ng -Te rm D ef ec t Em is si on C on tr ol W ar ra nt y Federal California= Sp ec ific C om po ne nt s 10 2 0 3 0 4 0 5 0 6 0 70 8 0 m on th s 10 2 0 3 0 4 0 5 0 6 0 70 8 0 m on th s 4 8 m on th s / 5 0 ,0 0 0 m ile s* 3 6 m on th s / 5 0 ,0 0 0 m ile s 72 m on th s / 70 ,0 0 0 m ile s 72 m on th s / 70 ,0 0 0 m ile s 72 m on th s / U nl im it ed m ile s 24 m on th s / 24 ,0 0 0 m ile s Sh or t-T er m D ef ec t 4 8 m on th s / 5 0 ,0 0 0 m ile s* 8 4 m on th s / 70 ,0 0 0 m ile s 4 8 m on th s / 5 0 ,0 0 0 m ile s 9 6 m on th s / 8 0 ,0 0 0 m ile s 9 6 m on th s / 8 0 ,0 0 0 m ile s *S pe ci fic c om po ne nt s m ay h av e lo ng er c ov er ag e un de r t er m s o f t he P ow er tra in W ar ra nt y. = A lso a pp lie s t o M ai ne , M as sa ch us et ts an d Ve rm on t v eh ic le s e qu ip pe d w ith a C al ifo rn ia C er tif ie d Em iss io n C on tro l S ys te m . V eh ic le s c ov er ed b y t hi s w ar ra nt y a re a lso c ov er ed b y t he Fe de ra l E m iss io n C on tro l W ar ra nt y. Exhibit 9 to Hare Declaration - Page 50 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 47 of 63 Page ID #:658 Who Is the Warrantor The warrantor for these limited war- ranties is Lexus, a division of Toyota Motor Sales, U.S.A., Inc., 19001 South Western Avenue, Torrance, California 90509-2991, a California corpora- tion. Which Vehicles Are Covered These warranties apply to 2007 model-year Lexus passenger vehicles, excluding hybrid models, registered and normally operated in the United States, U.S. territories and Canada. Warranty coverage is automatically transferred at no cost to subsequent vehicle owners. Multiple Warranty Conditions This booklet contains warranty terms and conditions that may vary depend- ing on the part covered. A warranty for specific parts or systems, such as the Powertrain Warranty or Emission Performance Warranty, is governed by the coverage set forth in that war- ranty as well as the General Warranty Provisions. When Warranty Begins The warranty period begins on the vehicle’s in-service date, which is the first date the vehicle is either delivered to an ultimate purchaser, leased, or used as a company car or demonstrator. Repairs Made at No Charge Repairs and adjustments covered by these warranties are made at no charge for parts and labor. Parts Replacement Any needed parts replacement will be made using new or remanufactured parts. The decision whether a part should be repaired or replaced will be made by the servicing Lexus dealer- ship and/or Lexus. Parts scheduled to be replaced as required maintenance are warranted until their first replace- ment only. Note: Lexus remanufactured parts meet or exceed all factory standards for safety, quality and reliability. GENERAL WARRANTY PROV I S IONS Your Warranties in Detail16 W A R R A N T Y Exhibit 9 to Hare Declaration - Page 51 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 48 of 63 Page ID #:659 Limitations The performance of necessary repairs and adjustments is the exclu- sive remedy under these warranties or any implied warranties. Lexus does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Any implied warranty of merchant - ability or fitness for a particular purpose is limited to the duration of these written warranties. Some states do not allow restrictions on how long an implied warranty lasts, so this limitation may not apply to you. Your Rights Under State Law These warranties give you specific legal rights. You may also have other rights that vary from state to state. GENERAL WARRANTY PROV I S IONS Your Warranties in Detail 17 W A R R A N T Y Exhibit 9 to Hare Declaration - Page 52 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 49 of 63 Page ID #:660 Basic Warranty This warranty covers repairs and adjustments needed to correct defects in materials or workmanship of any part supplied by Lexus, subject to the exceptions indicated under “What Is Not Covered” on pages 19-20. Coverage is for 48 months or 50,000 miles, whichever occurs first, with the exception of wheel alignment and wheel balancing, which are cov- ered for 12 months or 20,000 miles, whichever occurs first. Powertrain Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any component listed here and supplied by Lexus, subject to the exceptions indicated under “What Is Not Covered” on pages 19-20. Coverage is for 72 months or 70,000 miles, whichever occurs first. Engine Cylinder block and head and all internal parts, timing belt and cover, flywheel, oil pan, water pump, fuel pump, engine mounts, engine control computer, seals and gaskets. Transmission and Transaxle Case and all internal parts, torque converter, clutch cover, mounts, engine control computer, seals and gaskets. Front-Wheel-Drive System Drive shaft, axle, hub, bearings, seals and gaskets. Rear-Wheel-Drive System Differential carrier assembly, drive shaft, axle carrier, axle case, axle bearing, axle shaft, seals and gaskets. Restraint Systems Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any seatbelt or air bag system supplied by Lexus, subject to the exceptions indicated under “What Is Not Covered” on pages 19-20. Coverage is for 72 months or 70,000 miles, whichever occurs first. For vehicles sold and registered in Kansas, the warranty for seatbelts and related components is 10 years, regardless of mileage. WHAT IS COVERED AND HOW LONG NEW VEH ICLE L IM I T ED WARRANTY Your Warranties in Detail18 W A R R A N T Y Exhibit 9 to Hare Declaration - Page 53 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 50 of 63 Page ID #:661 Corrosion Perforation Warranty This warranty covers repair or replacement of any original body panel that develops perforation from corrosion (rust-through), subject to the exceptions indicated under “What Is Not Covered” on pages 19-20. Coverage is for 72 months, regard- less of mileage. For information on how to protect your vehicle from corrosion, see the section entitled “Service Procedures and Specifications - Body” in the Owner’s Manual. Towing When your vehicle is inoperable due to failure of a warranted part, towing service to the nearest authorized Lexus dealership is covered. This warranty does not cover damage or failures resulting directly or indi- rectly from any of the following: • Fire, accidents or theft • Abuse or negligence • Misuse - for example, racing or overloading • Improper repairs • Alteration or tampering, includ- ing installation of non-Genuine Lexus Accessories • Lack of or improper mainte- nance, including use of fluids other than those specified in the Owner’s Manual • Installation of non-Genuine Lexus Parts • Airborne chemicals, tree sap, road debris (including stone chips), rail dust, salt, hail, floods, wind storms, lightning and other environmental conditions • Water contamination WHAT IS NOT COVERED NEW VEHICLE LIMITED WARRANTY Your Warranties in Detail 19 W A R R A N T Y Exhibit 9 to Hare Declaration - Page 54 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 51 of 63 Page ID #:662 This warranty also does not cover the following: Tires Tires are covered by a separate war- ranty provided by the tire manufac - turer. See page 34. Normal Wear and Tear Noise, vibration, cosmetic conditions and other deterioration caused by normal wear and tear. Maintenance Expense* Normal maintenance services such as engine tune-ups; replacement of fluids and filters; lubrication; cleaning and polishing; replacement of spark plugs and fuses; and replacement of worn wiper blades, brake pads/linings and clutch linings. Vehicles With Altered Odometer Failure of a vehicle on which the odometer has been altered so that actual vehicle mileage cannot be readily determined. Vehicles With Unknown Vehicle Identification Number Any vehicle for which the original factory-assigned vehicle identification number cannot be determined. Salvage or Total-Loss Vehicles Any vehicle that has ever been issued a “salvage” title or similar title under any state’s law; or has ever been declared a “total loss” or equivalent by a financial institution or insurer, such as by payment for a claim in lieu of repairs because the cost of repairs exceeded the cash value of the vehi- cle. This exclusion does not apply to the emission control warranties. Incidental Damages Incidental or consequential damages associated with a vehicle failure. Such damages include but are not limited to inconvenience; the cost of trans- portation, telephone calls and lodg- ing; the loss of personal or commer- cial property; and the loss of pay or revenue. NEW VEH ICLE L IM I T ED WARRANTY Your Warranties in Detail20 W A R R A N T Y *Lexus provides the first scheduled maintenance service at no charge. See page 4 for details. Exhibit 9 to Hare Declaration - Page 55 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 52 of 63 Page ID #:663 If a dispute arises regarding your warranty coverage, please follow the steps described on pages 9-10. Please note that you must use the National Center for Dispute Settlement before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act. You may also be required to use the National Center for Dispute Settlement before seeking remedies under the Lemon Laws of your state. For the requirements applicable to your state, see the appropriate page of the Lemon Law Guide located in your vehicle. DISPUTE RESOLUTION NEW VEHICLE LIMITED WARRANTY Your Warranties in Detail 21 W A R R A N T Y Disclaimer of Extra Expenses and Damages The performance of necessary repairs and adjustments is the exclusive remedy under this war- ranty or any implied warranty. Lexus does not authorize any person to create for it any other obligation or liability in connec- tion with this vehicle. Lexus shall not be liable for incidental or consequential damages resulting from breach of this written war- ranty or any implied warranty. Any implied warranty of mer- chantability or fitness for a partic- ular purpose is limited to the duration of this written warranty, except in states where this limita- tion is not allowed. Exhibit 9 to Hare Declaration - Page 56 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 53 of 63 Page ID #:664 EXHIBIT 10 2009 Toyota Corolla Warranty and Maintenance Guide (Owner’s Warranty Information) Excerpts Exhibit 10 to Hare Declaration - Page 57 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 54 of 63 Page ID #:665 If your name or address has changed or you purchased your Toyota as a used vehicle, please complete and mail the attached card, even if your warranty coverage has expired. This will enable Toyota to contact you with important product or safety updates concern- ing your vehicle. If the card is no longer attached, please call the Toyota Customer Experience Center at (800)331-4331. Check one: Same owner, name and/or address has changed New owner, purchased vehicle used Same owner, additional driver who should receive product/safety updates Mr. Mrs. Ms. Miss Dr. OWNER INFORMATION CHANGE FORM EVV First name M.I. Last name Company name Street address or P.O. Box Apt. or suite number City State Zip code Vehicle Identification Number (required to process change) Mo. Day Year - / / Check here if address below is for company This information is obtained solely for the use of Toyota Motor Sales, U.S.A., Inc. Toyota occasionally sends special promotional offers to registered owners. Check here if you prefer not to receive these offers. Effective date of this information Primary phone number Alternate phone number - - - - E-mail address 00505-09TWB-COR Printed in U.S.A. 11/07 www.toyota.com 2009 Corll OWI-Cvr.cgla 11/26/07 4:35 PM Page COV1 Exhibit 10 to Hare Declaration - Page 58 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 55 of 63 Page ID #:666 Introduction6 WARRANTY COVERAGES AT A GLANCE 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 6 Exhibit 10 to Hare Declaration - Page 59 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 56 of 63 Page ID #:667 Who Is the Warrantor The warrantor for these limited warranties is Toyota Motor Sales, U.S.A., Inc. (“Toyota”), 19001 South Western Avenue, Torrance, California 90509-2991, a California corporation. Which Vehicles Are Covered These warranties apply to all 2009 model-year Corolla and Corolla Matrix vehicles distributed by Toyota that are originally sold by an authorized dealer in the United States and normally operated or touring in the United States, U.S. territories or Canada. Warranty coverage is automatically transferred at no cost to subsequent vehicle owners. Multiple Warranty Conditions This booklet contains warranty terms and conditions that may vary depending on the part covered. A warranty for specific parts or sys- tems, such as the Powertrain Warranty or Emission Performance Warranty, is governed by the coverage set forth in that warranty as well as the General Warranty Provisions. When Warranty Begins The warranty period begins on the vehicle’s in-service date, which is the first date the vehicle is either delivered to an ultimate purchaser, leased, or used as a company car or demonstrator. Repairs Made at No Charge Repairs and adjustments covered by these warranties are made at no charge for parts and labor. Parts Replacement Any needed parts replacement will be made using new or remanufac- tured parts. The decision whether a part should be repaired or replaced will be made by the servicing Toyota dealership and/or Toyota. Parts scheduled to be replaced as required maintenance are warranted until their first replacement only. Your Warranties in Detail 7 GENERAL WARRANTY PROVISIONS 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 7 Exhibit 10 to Hare Declaration - Page 60 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 57 of 63 Page ID #:668 Limitations The performance of necessary repairs and adjustments is the exclusive remedy under these warranties or any implied warranties. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Any implied warranty of merchantability or fitness for a particular purpose is limited to the duration of these written warranties. Some states do not allow restrictions on how long an implied warranty lasts, so this limitation may not apply to you. Your Rights Under State Law These warranties give you specific legal rights. You may also have other rights that vary from state to state. Your Warranties in Detail8 GENERAL WARRANTY PROVISIONS 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 8 Exhibit 10 to Hare Declaration - Page 61 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 58 of 63 Page ID #:669 Basic Warranty This warranty covers repairs and adjustments needed to correct defects in materials or workmanship of any part supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 11-12. Coverage is for 36 months or 36,000 miles, whichever occurs first, with the exception of wheel alignment and wheel balancing, which are covered for 12 months or 20,000 miles, whichever occurs first. Powertrain Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any component listed in the next column and supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 11-12. Coverage is for 60 months or 60,000 miles, whichever occurs first. Engine Cylinder block and head and all internal parts, timing gears and gas- kets, timing chain/belt and cover, flywheel, valve covers, oil pan, oil pump, engine mounts, turbocharger housing and all internal parts, supercharger housing and all internal parts, engine control computer, water pump, fuel pump, seals and gaskets. Transmission and Transaxle Case and all internal parts, torque converter, clutch cover, transmission mounts, transfer case and all internal parts, engine control computer, seals and gaskets. Front-Wheel-Drive System Final drive housing and all internal parts, axle shafts, drive shafts, constant velocity joints, front hub and bearings, seals and gaskets. Rear-Wheel-Drive System Axle housing and all internal parts, propeller shafts, U-joints, axle shafts, drive shafts, bearings, supports, seals and gaskets. WHAT IS COVERED AND HOW LONG Your Warranties in Detail 9 NEW VEHICLE LIMITED WARRANTY 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 9 Exhibit 10 to Hare Declaration - Page 62 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 59 of 63 Page ID #:670 Restraint Systems Warranty This warranty covers repairs needed to correct defects in materials or workmanship of any seatbelt or air bag system supplied by Toyota, subject to the exceptions indicated under “What Is Not Covered” on pages 11-12. Coverage is for 60 months or 60,000 miles, whichever occurs first. For vehicles sold and registered in the state of Kansas, the warranty for seatbelts and related components is 10 years, regardless of mileage. Corrosion Perforation Warranty This warranty covers repair or replacement of any original body panel that develops perforation from corrosion (rust-through), subject to the exceptions indicated under “What Is Not Covered” on pages 11-12. Coverage is for 60 months, regardless of mileage. For information on how to protect your vehicle from corrosion, see the section entitled “Corrosion Prevention and Appearance Care” in the Owner’s Manual. Towing When your vehicle is inoperable due to failure of a warranted part, towing service to the nearest authorized Toyota dealership is covered. Your Warranties in Detail10 NEW VEHICLE LIMITED WARRANTY 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 10 Exhibit 10 to Hare Declaration - Page 63 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 60 of 63 Page ID #:671 This warranty does not cover damage or failures resulting directly or indirectly from any of the following: • Fire, accidents or theft • Abuse or negligence • Misuse - for example, racing or overloading • Improper repairs • Alteration or tampering, including installation of non-Genuine Toyota Accessories • Lack of or improper maintenance, including use of fluids other than those specified in the Owner’s Manual • Installation of non-Genuine Toyota Parts • Airborne chemicals, tree sap, road debris (including stone chips), rail dust, salt, hail, floods, wind storms, lightning and other environmental conditions • Water contamination This warranty also does not cover the following: Tires Tires are covered by a separate warranty provided by the tire manufac- turer. See page 26. Normal Wear and Tear Noise, vibration, cosmetic conditions and other deterioration caused by normal wear and tear. Maintenance Expense Normal maintenance services such as: • Engine tune-ups • Replacement of fluids and filters • Lubrication • Cleaning and polishing • Replacement of spark plugs and fuses • Replacement of worn wiper blades, brake pads/linings and clutch linings WHAT IS NOT COVERED Your Warranties in Detail 11 NEW VEHICLE LIMITED WARRANTY 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 11 Exhibit 10 to Hare Declaration - Page 64 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 61 of 63 Page ID #:672 Vehicles With Altered Odometer Failure of a vehicle on which the odometer has been altered so that actual vehicle mileage cannot be readily determined. Salvage or Total-Loss Vehicles Any vehicle that has ever been issued a “salvage” title or similar title under any state’s law; or has ever been declared a “total loss” or equiv- alent by a financial institution or insurer, such as by payment for a claim in lieu of repairs because the cost of repairs exceeded the cash value of the vehicle. This exclusion does not apply to the emission control warranties. Incidental Damages Incidental or consequential damages associated with a vehicle failure. Such damages include but are not limited to inconvenience; the cost of transportation, telephone calls and lodging; the loss of personal or commercial property; and the loss of pay or revenue. Disclaimer of Extra Expenses and Damages The performance of necessary repairs and adjustments is the exclusive remedy under this warranty or any implied warranty. Toyota does not authorize any person to create for it any other obligation or liability in connection with this vehicle. Toyota shall not be liable for incidental or consequential damages resulting from breach of this written warranty or any implied warranty. Any implied warranty of merchantability or fitness for a particular pur- pose is limited to the duration of this written warranty, except in states where this limitation is not allowed. Your Warranties in Detail12 NEW VEHICLE LIMITED WARRANTY 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 12 Exhibit 10 to Hare Declaration - Page 65 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 62 of 63 Page ID #:673 If a dispute arises regarding your warranty coverage, please follow the steps described under “If You Need Assistance” on pages 4-5. Please note that you must use the Dispute Settlement Program (or, in California, the CDSP) before seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act. You may also be required to use the Dispute Settlement Program or CDSP before seek- ing remedies under the “Lemon Laws” of your state. Please check the appropriate page of the Owner’s Warranty Rights Notification booklet (located in your glove box) for the requirements applicable to your state. DISPUTE RESOLUTION Your Warranties in Detail 13 NEW VEHICLE LIMITED WARRANTY 2009 Corolla-guts.cgla 11/16/07 10:26 AM Page 13 Exhibit 10 to Hare Declaration - Page 66 Case 2:17-cv-00035-VAP-KS Document 39-5 Filed 04/17/17 Page 63 of 63 Page ID #:674 DB1/ 91782969.1 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PAUL STOCKINGER, ELIZABETH STOCKINGER, GAILYN KENNEDY, BASUDEB DEY, BRENDA FLINN, ELIEZER CASPER, and YVETTE ALLEY on behalf of themselves and all others similarly situated, Plaintiffs, vs. TOYOTA MOTOR SALES, U.S.A., INC., a California corporation, Defendant. Case No. 2:17-cv-00035-VAP (KSx) [PROPOSED] ORDER GRANTING TOYOTA MOTOR SALES, U.S.A., INC.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT AND REQUEST FOR JUDICIAL NOTICE Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 1 of 16 Page ID #:675 DB1/ 91782969.1 1 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 Pending before this Court is the motion of Defendant Toyota Motor Sales, U.S.A., Inc. (“Toyota”) to dismiss the First Amended Complaint (“FAC”), filed by Plaintiffs Paul Stockinger, Elizabeth Stockinger, Gailyn Kennedy, Basudeb Dey, Brenda Flinn, Eliezer Casper, and Yvette Alley (collectively, “Plaintiffs”), pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure and request for judicial notice in support thereof. After full consideration of the moving and opposing papers of all parties, supporting declarations and exhibits, the arguments of counsel, and all other matters presented to the Court, IT IS HEREBY ORDERED that: Toyota’s motion to dismiss the FAC is GRANTED. Plaintiffs have failed to state a claim against Toyota upon which relief may be granted for any of their purported causes of action under: (1) California Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq. (“CLRA”), (2) California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (“UCL”), (3) Fraud, (4) Negligent Misrepresentation, (5) Breach of Express Warranty, (6) Breach of Implied Warranty, (7) Violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq., (8) Violation of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1791, et seq., (9) Unjust Enrichment, (10) Violation of the Florida Unfair & Deceptive Trade Practices Act., Fla. Stat. § 501.201, et seq., (11) Violation of the Kansas Consumer Protection Act, Kan. Stat. Ann. § 50-623, et seq., (12) Violation of the Virginia Consumer Protection Act, Va. Code Ann. § 59.1-196, et seq., (13) Violation of the Washington Consumer Protection Act, RCW 19.86, et seq., and (14) Violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-101 et seq. Plaintiffs’ Defect Allegations Fail. Plaintiffs assert claims arising from purported misrepresentations, omissions, and breaches of warranty by Toyota about an alleged defect in their HVAC Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 2 of 16 Page ID #:676 DB1/ 91782969.1 2 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 systems. Thus, Plaintiffs must plausibly plead an alleged defect as an element to all of their claims. Plaintiffs fail to do so. Plaintiffs’ allegations on “information and belief” are insufficient to allege a defect with their vehicles. Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 927 (9th Cir. 2013) (conclusory allegations on “information and belief” were insufficient to state a claim in the absence of “specific factual allegations regarding [the defendant’s] involvement in the actions giving rise to this lawsuit”). Because Plaintiffs are in possession of their vehicles, the facts that Plaintiffs plead on “information and belief”-for example, that there is accumulated water or mold growth in their HVAC systems-are ones that are either known to Plaintiffs or are ascertainable by them. See, e.g., FAC at ¶¶ 3, 6-7; see, e.g., Yagman v. General Motors Co., No. CV-14-4696-MWF AGRX, 2014 WL 4177295, at *3 (C. D. Cal. Aug. 22, 2014) (dismissing complaint for failing to plausibly allege a defect under Iqbal/Twombly, in part because the “[p]laintiff is in the best position to ascertain the condition of the car engine, which evidently is still in his possession”). Absent such factual allegations, the Court cannot conclude that Plaintiffs have plausibly alleged a design defect in their vehicles. Plaintiffs’ defect-related allegations fail for another reason. Although Plaintiffs allege the existence of odor, they do not plead any facts to support that the alleged defect causes odors from their HVAC systems. This failure is critical because absent causation, Plaintiffs have not sufficiently pled that their HVAC systems contain the alleged defect. As Plaintiffs concede, HVAC odor can be produced by many different causes unrelated to any alleged defect. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 965 (9th Cir. 2013) (affirming dismissal of antitrust claim in part due to obvious alternative explanations for the defendant’s music pricing); see also Decoteau v. FCA US LLC, No. 215CV00020MCEEFB, 2015 WL 6951296, at *1 (E.D. Cal. Nov. 10, 2015) (holding that plaintiffs Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 3 of 16 Page ID #:677 DB1/ 91782969.1 3 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 “must . . . plausibly connect the existence of the alleged defect to the injuries they claim to have suffered.”); accord Yagman, 2014 WL 4177295, at *3. Plaintiffs’ Fraud-Based Claims Fail. Plaintiffs’ fraud-based claims (Counts I, II, III, VIII-XIV) are all subject to the heightened pleading standard under Rule 9(b) and fail for several reasons. First, Plaintiffs do not identify any material misrepresentation made by Toyota about their vehicles. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125- 1126 (9th Cir. 2009) (affirming dismissal of CLRA and UCL claims where the plaintiff failed to plead particular misrepresentation relied upon, when those misrepresentations were made, and by whom); Enomoto v. Space Adventures, Ltd., 624 F. Supp. 2d 443, 456 (E.D. Va. 2009) (fraud is a necessary element to establish claim under the VCPA); accord Kan. Stat. Ann. § 50-626(a)-(b) (KCPA requires a misrepresentation of a material fact); accord Hangman Ridge Training Stables, Inc., 105 Wash. 2d 778, 785 (1986) (WCPA requires an unfair or deceptive act); accord Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1355-57 (S.D. Fla. 2012) (dismissing misrepresentation-based claims under FDUTPA because plaintiff relied upon conclusory allegations); accord Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 147 (Colo. 2003) (knowing misrepresentation may be actionable under CCPA). Second, Plaintiffs do not identify a material, factual omission that Toyota had a duty to disclose. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012) (observing that “California courts have generally rejected a broad duty to disclose . . .”); White v. Potocska, 589 F. Supp. 2d 631, 642 (E.D. Va. 2008) (same under Virginia law); Plastic Packaging Corp. v. Sun Chem. Corp., 136 F. Supp. 2d 1201, 1205 (D. Kan. 2001) (same under Kansas law); TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 879 (Fla. 4th DCA 2000) (stating that “[a] defendant’s knowing concealment or non-disclosure of a material fact may only support an action for fraud where there is a duty to disclose”); Van Dinter v. Orr, 157 Wash. Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 4 of 16 Page ID #:678 DB1/ 91782969.1 4 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 2d 329, 334 (2006) (Washington law); accord Alpine Bank v. Hubbell, 555 F.3d 1097, 1109 (10th Cir. 2009) (Colorado law). To the contrary, Toyota discloses the possibility of HVAC odor in its owner’s manuals.1 This undermines any allegation of a failure to disclose, let alone “exclusive” knowledge or “active concealment” by Toyota. Although the six state laws under which Plaintiffs allege their common law omission-based claims vary dramatically as to their recognition and application of an “exclusive” knowledge exception, Plaintiffs nonetheless fail to plead facts to support such an exception. Herron v. Best Buy Co. Inc., 924 F. Supp. 2d 1161, 1175 (E.D. Cal. 2013) (under California law “exclusive” knowledge requires plaintiffs to show that Toyota “knew of th[e] defect while plaintiffs did not, and, given the nature of the defect, it was difficult to discover”); Plastic Packaging Corp., 136 F. Supp. 2d at 1205 (D. Kan. 2001) (same under Kansas law); Noell Crane Sys. GmbH v. Noell Crane & Serv., 677 F. Supp. 2d 852, 872-873 (E.D. Va. 2009) (same under Virginia law); Orr, 157 Wash. at 334 (same under Washington law).2 Plaintiffs fail to allege that Toyota had knowledge about an alleged defect causing water retention or mold growth at the time of Plaintiffs’ purchases. Wilson, 668 F.3d at 1145 (requiring that the “plaintiffs must sufficiently allege that a defendant was aware of a defect at the time of sale to survive a motion to dismiss”). 1 As explained in more detail below, the Court grants Toyota’s request for judicial notice of, inter alia, the owner’s manuals of Plaintiffs’ vehicles. The fact that the owner’s manuals are incorporated by reference into Plaintiffs’ FAC provides an additional and independent basis for the Court to consider the disclosures in the owner’s manuals in Plaintiffs’ vehicles. See FAC., e.g., at ¶ 34. 2 The prevailing view under Florida law does not recognize a categorical “exclusive” knowledge exception to establish a common law duty to disclose. See Marriott Int’l, Inc. v. Am. Bridge Bah., Ltd., 193 So. 3d 902, 908 (Fla. 3d DCA 2015). Likewise, Colorado law does not recognize a categorical “exclusive” knowledge exception, and generally requires the existence of a fiduciary duty or partial representation in order to establish a duty to disclose. See Alpine Bank v. Hubbell, 555 F.3d 1097, 1109 (10th Cir. 2009) (setting forth circumstances under which a duty to disclose may arise under Colorado law). Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 5 of 16 Page ID #:679 DB1/ 91782969.1 5 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 Plaintiffs rely primarily on technical service bulletins (“TSBs”) to establish Toyota’s knowledge of the alleged defect (FAC at ¶¶ 57-67), but TSBs are routine communications to dealerships; they do not reflect knowledge-“exclusive” or otherwise-of a defect. See Am. Honda Motor Co. v. Sup. Ct., 199 Cal. App. 4th 1367, 1378 (2011) (“A TSB is not and cannot fairly be construed by a trial court as an admission of a design or other defect, because TSB’s are routinely issued to dealers to help diagnose and repair typical complaints”). Plaintiffs also rely on conclusory allegations about unidentified “pre- production testing, pre-production design failure mode analysis, production design failure mode analysis, early consumer complaints made to Defendant’s network of exclusive dealers, aggregate warranty data compiled from those dealers, repair order and parts data received from the dealers, consumer complaints to dealers and NHTSA, and testing performed in response to consumer complaints,” FAC at ¶¶ 50, 56, but numerous courts have rejected these types of conclusory allegations as insufficient to show “exclusive” knowledge. See Grodzitsky v. Am. Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 690822, at *6 (C.D. Cal. Feb. 19, 2013) (finding insufficient complaint alleging knowledge based on “pre-release testing data, early consumer complaints to Honda and dealers, testing done in response to complaints, replacement part sales data, aggregate data from Honda dealers, and other internal sources”); see also Herremans v. BMW of N. Am., LLC, No. CV 14-02363 MMM PJWX, 2014 WL 5017843, at *17 (C.D. Cal. Oct. 3, 2014) (same); see also Polygon Northwest Co. LLC v. Louisiana-Pacific Corp., No. C11-620 MJP, 2012 WL 2504873, at *6 (W.D. Wash. June 28, 2012) (“mere existence of other customers having filed warranty claims does not suggest LP knew the Rockwell siding was defective”). Third, Plaintiffs do not plausibly allege any facts supporting the existence of an “unreasonable safety hazard”-which the Ninth Circuit recently confirmed is required to establish a duty to disclose an alleged product defect under various state Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 6 of 16 Page ID #:680 DB1/ 91782969.1 6 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 consumer protection statutes, including California, Florida, Virginia, and Washington. See Williams v. Yamaha Motor Co., 851 F.3d 1015 (9th Cir. 2017) (affirming dismissal of failure-to-disclose consumer protection claims under, inter alia, UCL, CLRA, WCPA, FDUTPA, and VCPA because the plaintiffs failed to plead an “unreasonable safety hazard” caused by the alleged defect); see also Wilson v. Hewlett-Packard Co., 668 F. 3d 1136, 1142-43 (9th Cir. 2012) (plaintiff must allege existence of an unreasonable safety hazard and causal connection between defect and hazard in order to trigger a duty to disclose). Plaintiffs offer two theories: (1) a “safety hazard” based on “exposure to mold” and (2) “additional safety concerns in some Class Vehicles where water that has accumulated in the HVAC System can leak onto the airbag module . . . disabling the airbag or causing inadvertent deployment.” FAC at ¶¶ 6 and 7 (emphasis added). However, neither theory plausibly pleads a non-speculative “unreasonable safety hazard.” No Plaintiff alleges that he or she has been exposed to mold caused by the alleged defect, or that he or she has suffered any health issues or increased health risk due to the purported exposure. Moreover, as required by Williams, the alleged hazard must rise to the level of being unreasonable. Because mold exists at some level in nearly all environments, see Decl. of David Schrader, Exh. 1 [CDC webpage], simply pleading the existence of mold generally is insufficient to plausibly establish an unreasonable safety hazard.3 Likewise, Plaintiffs do not allege that they experienced any purported “safety concern[]” regarding airbag modules, which Plaintiffs concede only affects “some Class Vehicles.” FAC, at ¶ 7. Plaintiffs rely exclusively on a recall document (Exh. E to the FAC) to support this “safety concern” in their own vehicles, but that recall applied to the Camry model (which is not a proposed class vehicle in this 3 As further explained below, Exhibit 1 to the Schrader Declaration is incorporated by reference in Plaintiffs’ FAC (at Footnote 8) and independently judicially noticeable as a public record noting scientific facts. Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 7 of 16 Page ID #:681 DB1/ 91782969.1 7 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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) and the Venza and Avalon models (which no named Plaintiff purchased). Moreover, the recall expressly noted that the vehicles owned by Plaintiffs are not covered because “[t]he HVAC assembly used on other vehicles is of a different design.” FAC at Exh. E. Even more, the recall was based upon the potential for water accumulation because of a clogged HVAC drain-not because of a supposed problem with an HVAC evaporator (like Plaintiffs allege here). Compare FAC ¶ 65 with FAC ¶ 38. Accordingly, Plaintiffs’ failure to allege an “unreasonable safety hazard” defeats Plaintiffs’ consumer protection claims as a matter of law. The economic loss rule independently bars Plaintiffs’ negligent misrepresentation claims. The economic loss rule “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Robinson Helicopter Corp. v. Dana Corp., 34 Cal. 4th 979, 988 (2005). Where the plaintiff alleges a claim for negligence based on a defective product, “a manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone.” Seely v. White Motor Co., 63 Cal. 2d 9, 18 (1965). This principle applies to each state law negligent misrepresentation claims asserted by Plaintiffs, and such claims are therefore dismissed as barred by the economic loss rule. See Sharma v. BMW of N. Am., LLC, No. C-13-2274 MMC, 2014 WL 2795512, *6-7 (N.D. Cal. June 19, 2014) (California law); Branin v. TMC Enterprises, LLC, 832 F. Supp. 2d 646, 654-55 (W.D. Va. 2011) (Virginia law); accord Alejandre v. Bull, 159 Wash. 2d 674, 681 (2007) (Washington law); accord Aprigliano v. Am. Honda Motor Co., 979 F. Supp. 2d 1331, 1337 (S.D. Fla. 2013) (Florida law); accord Kestrel Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071, 1076 (D. Kan. 2004) (Kansas law); accord BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 74 (Colo. 2004) (Colorado law). Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 8 of 16 Page ID #:682 DB1/ 91782969.1 8 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 Plaintiffs’ Warranty Claims Fail. Plaintiffs’ breach of express warranty claim fails because the written warranty is limited to defects in “materials and/or workmanship” and does not cover design defects, the latter of which are what Plaintiffs purport to allege. See In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 754 F. Supp. 2d 1145, 1180-81 (C.D. Cal. 2010) (dismissing claim because warranty guaranteeing against “materials and workmanship” did not extend to design defects); accord Bros. v. Hewlett-Packard Co., No. C-06-02254, 2007 WL 485979, at *4 (N.D. Cal. Feb. 12, 2007) (“Unlike defects in materials or workmanship, a design defect is manufactured in accordance with the product’s intended specifications.”). Plaintiffs’ breach of warranty claims fail for another reason, too. Regardless of the type of defect at issue, a manufacturer is “not liable for breach of express warranty merely because a product manifests recurring failures during the warranty period. Rather, the question is whether [a plaintiff] sought repairs, refunds, or replacements and, if so, whether [the manufacturer] responded appropriately under the warranty.” Coe v. Philips Oral Healthcare Inc., No. C13-518-MJP, 2014 WL 722501, at *7 (W.D. Wash. Feb. 24, 2014) (dismissing breach of express warranty claim because the plaintiffs did not allege that they exercised the warranty or that the defendant responded inappropriately”); see also In re Toyota Motor Corp., 754 F. Supp. 2d at 1179 (“Plaintiffs who neither sought repairs pursuant to the recalls nor sought repairs for SUA-related issues may not pursue a claim for breach of express warranty based on the written warranty”); Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 744 n.7 (Colo. 1991) (applying rule); see also David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d 1309, 1318 (S.D. Fla. 2009) (manufacturer only liable under the terms of warranty). The written warranties associated with Plaintiffs’ vehicles are limited to “repairs and adjustments needed to correct defects in materials or workmanship,” but no Plaintiff alleges that he or she sought repairs of the alleged defect during the Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 9 of 16 Page ID #:683 DB1/ 91782969.1 9 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 warranty period for his or her vehicle-much less that Toyota failed to repair the vehicle in response to such a request. See Hare Decl. at Exhs. 5-10.4 Furthermore, Plaintiff Kennedy’s and Plaintiff Alley’s claims are barred by the Virginia and Colorado statutes of limitations, respectively. Plaintiff Kennedy alleges that she purchased her vehicle on November 16, 2006; that the express warranty for her vehicle is 48 months or 50,000 miles, whichever occurs first; and that she experienced the alleged defect during the express warranty period. FAC at ¶¶ 18, 146, 148. Because Plaintiff Kennedy’s express warranty expired no later than November 16, 2010, she necessarily discovered the alleged defect no later than this date. The longest conceivable statute of limitation applicable to her claims is four years. See Va. Code Ann. § 8.2-725(1) (breach of express warranty claim statute of limitation is four years). Yet, Plaintiff Kennedy failed to file her lawsuit on November 16, 2014, and, instead, waited until more than two years after the limitation period had expired. Thus, all of Plaintiff Kennedy’s claims are barred by the applicable statutes of limitation. Likewise, all of Plaintiff Alley’s claims are time barred under Colorado law. Plaintiff Alley purchased her vehicle on June 26, 2008. FAC at ¶ 26. The warranty states that it is the sooner of 36 months or 36,000 miles. Hare Decl. at Exh. 10. Because Plaintiff Alley alleges that she experienced the alleged defect during the express warranty period, FAC at ¶ 148, she necessarily discovered the alleged defect no later June 26, 2011. Under Colorado law, the longest applicable limitation period is three years. Colo. Rev. Stat. Ann. § 13-80- 101 (three-year period applies to fraud and breach of contract claims); Colo. Rev. Stat. Ann. § 6-1-115 (same for CCPA claim). Because Plaintiff Alley waited more than four years to file her claims, they are hereby dismissed. Plaintiffs also fail to plead a breach of the implied warranty of merchantability because their vehicles are fit for their ordinary purpose of providing 4 As explained below, the written warranties associated with Plaintiffs’ vehicles are incorporated by reference in Plaintiffs’ FAC. Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 10 of 16 Page ID #:684 DB1/ 91782969.1 10 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 transportation. See Troup v. Toyota Motor Corp., 545 F. App’x 668, 669 (9th Cir. 2013) (affirming dismissal of implied warranty claim because “alleged defect did not compromise the vehicle’s safety, render it inoperable, or drastically reduce its mileage range”); accord Lowe v. Mercedes Benz of N. Am., 103 F.3d 118,1996 WL 694433, at *4 (4th Cir. Dec. 5, 1996) (dismissing implied warranty claim, under Virginia law, as the vehicle was “in compliance because it was at all times fit and used for its ordinary purpose - transportation”); Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wash. App. 39, 44 (1976) (same under Washington law). The implied warranty of merchantability does not require an automobile to be “perfect in every detail so long as it ‘provides for a minimum level of quality.’” Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962, 980 (C.D. Cal. 2014) (citation omitted); accord Int’l Petroleum Serv., Inc. v. S & N Well Serv., Inc., 230 Kan. 452, 454 (1982) (same under Kansas law). The failure to plead an underlying breach of warranty claim requires dismissal of Plaintiffs’ claims under the Song-Beverly Warranty Act and the Magnuson-Moss Warranty Act. See Birdsong v. Apple, Inc., 590 F.3d 955, 958, n. 2 (9th Cir. 2009). Further, Plaintiffs’ failure to avail themselves of Toyota’s information dispute resolution procedures as required by 15 U.S.C. § 2310(a) requires dismissal of Plaintiffs’ Magnuson-Moss Warranty Act claim. See Hare Decl. at Exhs. 5-10 (Toyota and Lexus warranty manuals contain a “Dispute Settlement Program”). Plaintiffs’ Equitable Claims Fail. Plaintiffs seek equitable relief in the form of restitution and injunctive relief through their state law consumer protection claims and “claims” for unjust enrichment. See FAC at ¶¶ 103, 119, 193, 229, 253, 273, 292. These claims for equitable relief fail for several fundamental reasons. First, “it is axiomatic that a court should determine the adequacy of damages at law before resorting to equitable relief.” See Franklin v. Gwinnett Cnty. Pub. Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 11 of 16 Page ID #:685 DB1/ 91782969.1 11 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 Sch., 503 U.S. 60, 62 (1992). “Where the claims pleaded by a plaintiff may entitle her to an adequate remedy at law, equitable relief is unavailable.” Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095, at *4 (N.D. Cal. May 31, 2011) (emphasis added); accord Licul v. Volkswagen Grp. of Am., Inc., No. 13-61686- CIV, 2013 WL 6328734, at *7 (S.D. Fla. Dec. 5, 2013) (Florida law); accord Shafer, Kline & Warren, Inc. v. The Allen Grp.-Kansas City, LLC, No. 13-2472- JAR-TJJ, 2014 WL 1974525, at *2 (D. Kan. May 15, 2014) (Kansas law); accord Seattle Prof’l Eng’g Employees Ass’n v. Boeing Co., 139 Wash. 2d 824, 839 (2000) (Washington law); Francis v. Mead Johnson & Co., No. 1:10-CV-00701-JLK, 2010 WL 5313540, at *9 (D. Colo. Dec. 17, 2010) (Colorado law). In the instant action, Plaintiffs allege they are entitled to an adequate legal remedy through their breach of warranty, fraud, and statutory consumer protection claims, which may entitle them to damages. See FAC, e.g., at ¶¶ 156, 167. Thus, the FAC does not and cannot sufficiently allege that an adequate legal remedy is not available, and Plaintiffs’ claims for equitable relief, including their UCL, CLRA, and unjust enrichment claims, should be dismissed. Second, Plaintiffs’ claims for equitable relief fail because they allege no distinction between the factual basis for their claims seeking equitable remedies and their claims seeking legal remedies. See Zapata Fonseca v. Goya Foods, Inc., No. 16-CV-02559-LHK, 2016 WL 4698942, * 7 (N.D. Cal. Sept. 8, 2016) (because the plaintiff’s claims seeking equitable relief “‘rel[ied] upon the same factual predicates as . . . [the] [p]laintiff’s legal causes of action’ . . . they must be dismissed”). Third, Plaintiffs’ claims for unjust enrichment (FAC at ¶¶ 187-193) must be dismissed because Plaintiffs allege the existence and enforceability of an express contract and unjust enrichment is unavailable to redefine that relationship. See Maloney v. Indymac Mortg. Servs., No. CV 13-04781 DDP, 2014 WL 6453777, *7 (C.D. Cal. Nov. 17, 2014) (California law); see also Brown v. Transurban USA. Inc., 144 F. Supp. 3d 809, 844 (E.D. Va. 2015) (Virginia law); Shafer, Kline & Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 12 of 16 Page ID #:686 DB1/ 91782969.1 12 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 Warren, Inc., 2014 WL 1974525, at *2 (Kansas law); Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 5th DCA 2008) (Florida law); accord Interbank Investments, LLC v. Eagle River Water and Sanitation Distr., 77 P.3d 814, 816 (Colo.App. 2003) (Colorado law); Chandler v. Wash. Toll Bridge Authority, 17 Wash. 2d 591, 605 (1943) (Washington law). Fourth, Plaintiff Dey’s unjust enrichment “claim” should be dismissed because no independent cause of action for unjust enrichment exists under prevailing California law. See In re Toyota Motor Corp., 754 F. Supp. 2d at 1193- 94 (“Simply put, ‘there is no cause of action in California for unjust enrichment’”); accord Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). Plaintiffs Lack Standing To Pursue Some of Their Claims. Plaintiffs do not have standing to pursue claims regarding vehicles they did not purchase. In the Ninth Circuit, there “is no controlling authority on whether Plaintiffs have standing to sue for products that they did not purchase.” In re 5- hour ENERGY Mktg. & Sales Practices Litig., No. 13-2438 PSG (PLAX), 2017 WL 385042, at *13 (C.D. Cal. Jan. 24, 2017). Courts have taken two different approaches-both of which apply significant standing limits on named plaintiffs who seek to pursue class claims based upon products that they themselves did not purchase. These limits help ensure that a company is not subject to burdensome class-wide discovery regarding products which have no connection to the Plaintiffs. Plaintiffs lack standing under either approach. Under one line of authority, when a plaintiff asserts class claims “based both on products that she purchased and products that she did not purchase, claims relating to products not purchased [by the named Plaintiffs] must be dismissed for lack of standing.” Granfield v. NVIDIA Corp., No. C 11-05403JW, 2012 WL 2847575, at *6 (N.D. Cal. July 11, 2012) (emphasis added); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D. Cal. Jan. 10, 2011) (applying principle); Johns v. Bayer Corp., No. Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 13 of 16 Page ID #:687 DB1/ 91782969.1 13 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 09CV1935DMSJMA, 2010 WL 476688, *4-5 (S.D. Cal. Feb. 9, 2010) (same). Plaintiffs clearly cannot satisfy this standard. Plaintiffs allege that they purchased four vehicle models (a Toyota Sienna, a Lexus 350 ES, a Toyota Prius, and a Toyota RAV4). Thus, Plaintiffs lack standing to pursue claims regarding the 34 other makes and models of vehicles that they did not purchase. A second line of authority recognizes that a plaintiff “may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal. 2012) (emphasis added). This Court recently applied this standard in the context of class certification. Sonner v. Schwabe N. Am., Inc., No. EDCV151358VAPSPX, 2017 WL 474106, at *3 (C.D. Cal. Feb. 2, 2017) (Phillips, J.); see also Hass v. Citizens of Humanity, LLC, No. 14-CV-1404 JLS (WVG), 2016 WL 7097870, at *7 (S.D. Cal. Dec. 6, 2016) (dismissing claims based upon products plaintiff did not purchase because no facts showing “those products and their labels are substantially similar to the Ingrid brand jeans Plaintiff purchased”). Even under a “substantially similar” standard, Plaintiffs lack standing to pursue claims pertaining to vehicles they never purchased. Plaintiffs seek to engage in a massive class-wide discovery fishing expedition based upon the naked and insufficient legal conclusion that all 38 models of Toyota and Lexus vehicles- ranging from subcompact cars to large sports utility vehicles and spanning 11 model years-have the same alleged defect. But Plaintiffs fail to allege a single fact about the other 34 model vehicles they never purchased-much less that those vehicles have the same, or even similar, HVAC systems to the specific models Plaintiffs purchased. Indeed, Plaintiffs’ very pleading shows the opposite-that the HVAC systems of the myriad putative class vehicles involve “different design[s].” FAC at Exh. E. See e.g. Wilson v. Frito-Lay N. Am., Inc., 961 F. Supp. 2d 1134, 1142 (N.D. Cal. 2013) (dismissing claims regarding unpurchased products with Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 14 of 16 Page ID #:688 DB1/ 91782969.1 14 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 prejudice because the court “will not assume that each of these subtly different Products is like all the others” and plaintiffs “have to say more, especially when they are asserting standing as to Products they did not purchase-otherwise their pleadings amount to unacceptably bare legal conclusions”). Likewise, because Plaintiffs do not allege any facts about the marketing of the other 34 different model vehicles they never purchased, Plaintiffs do not and cannot show that any unidentified misrepresentations or omissions they rely upon were uniform across the sale of those disparate vehicles-which took place at different times and dealerships across the country. Put simply, Plaintiffs lack standing to bring claims for injuries regarding vehicles about which they have asserted no facts and to which they have no connection. Thus, those of Plaintiffs’ claims related to vehicles Plaintiffs did not purchase are hereby dismissed for lack of standing. All of Plaintiffs’ Claims Are Dismissed With Prejudice. Plaintiffs have now had two opportunities to plead a plausible theory of liability based on an alleged defect with their HVAC systems. Because they cannot do so, Toyota’s motion to dismiss the FAC in its entirety is GRANTED WITHOUT LEAVE TO AMEND and Plaintiffs’ FAC is hereby DISMISSED WITH PREJUDICE. See Reddy v. Litton, 912 F.2d 291, 296 (9th Cir. 1990) (leave to amend need not be granted when further amendment would be futile). Further, Toyota’s request for judicial notice is GRANTED and the Court hereby takes judicial notice of Exhibit 1 attached the Declaration of David L. Schrader and Exhibits 1 - 10, attached to the Declaration of Barry M. Hare, as well as the fact that mold can be found in virtually every environment, both indoors and outdoors. These documents and facts are “not subject to reasonable dispute” because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Likewise, scientific facts-such as the fact that mold can be found virtually anywhere-are Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 15 of 16 Page ID #:689 DB1/ 91782969.1 15 [PROPOSED] ORDER GRANTING TOYOTA’S MOTION TO DISMISS FAC AND REQUEST FOR JUDICIAL NOTICE 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 readily judicially noticeable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993) (noting that “firmly established” scientific theories “properly are subject to judicial notice”); see also United States v. DeBetham, 348 F. Supp. 1377, 1383 (S.D. Cal.) (‘“General scientific acceptance’ is a proper condition upon the court’s taking judicial notice of scientific facts.”) aff’d sub nom. United States v. De Betham, 470 F.2d 1367 (9th Cir. 1972). Further, the incorporation by reference doctrine provides an independent basis for the Court’s consideration of exhibits attached to the Schrader and Hare declarations.5 See Knievel v. ESPN, 393 F.3d 1068, 1076-1077 (9th Cir. 2005); Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006). IT IS SO ORDERED. Dated: ______________, 2017 HON. VIRGINIA A. PHILLIPS DISTRICT COURT CHIEF JUDGE 5 These materials are incorporated by reference in Plaintiffs’ FAC at Paragraphs 28, 30, 34, 124, 125, and Footnotes 8, 11 - 14. Further, the owner’s manuals have been authenticated by Barry Hare, an automotive engineer and Design and Technical Analysis Manager for the Technical Analysis Group at Toyota Motor North America, Inc. As such, the fact that these owner’s manuals exist and contain certain statements regarding the occurrence of air conditioning odors cannot be subject to reasonable dispute. Case 2:17-cv-00035-VAP-KS Document 39-6 Filed 04/17/17 Page 16 of 16 Page ID #:690