Reginald Whitley et al v. Whirlpool Corporation

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.January 9, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) Andrew M. Unthank (admitted pro hac vice) Email: unthank@wtotrial.com Laura J. McNabb (admitted pro hac vice) Email: mcnabb@wtotrial.com WHEELER TRIGG O’DONNELL LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-5647 Telephone: 303.244.1800 Facsimile: 303.244.1879 Ashley R. Fickel (237111) Email: afickel@dykema.com DYKEMA GOSSETT PLLC 333 South Grand Avenue, Suite 2100 Los Angeles, California 90071 Telephone: 213.457.1758 Facsimile: 213-457-1850 Attorneys for Defendant Whirlpool Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA REGINALD WHITLEY and JOANN WHITLEY, individually, and on behalf of a class of similarly situated individuals, Plaintiffs, vs. WHIRLPOOL CORPORATION, a Delaware corporation Defendant. Case No.: 8:16-cv-1704 CJC (DFM) Assigned to the Hon. Cormac J. Carney DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT Hearing Date: March 20, 2017 Time: 1:30 PM Ctrm: 9B Complaint served: November 18, 2016 Trial date: Not yet set Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 1 of 25 Page ID #:96 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 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) TO THE COURT AND ALL ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 20, 2017, at 1:30 p.m., Defendant Whirlpool Corporation (“Whirlpool” or “Defendant”) will bring for hearing this Motion to Dismiss Class Action Complaint, pursuant to Federal Rules of Civil Procedure 8(a), 9(b) and 12(b)(6). The motion is made on the following grounds: 1. Plaintiffs fail to state claims for breach of implied warranty under either the Song-Beverly Consumer Warranty Act (“SBA”) or the Magnuson- Moss Warranty Act (“MMWA”) because they do not allege that their oven was unmerchantable within the one-year durational limit, nor do they allege that it was unfit for its ordinary purpose of cooking food. These claims fail as a matter of law and should be dismissed with prejudice. 2. Plaintiffs fail to state consumer protection claims under California’s Consumers Legal Remedies Act (“CLRA”) and California’s Unfair Competition Law (“UCL”) because they do not adequately allege that Whirlpool had pre-sale knowledge of the alleged defect or that Whirlpool had a duty to disclose that defect. Plaintiffs also fail to plead conduct amounting to an “unlawful” or “unfair” business practice under the UCL. 3. Plaintiffs’ unjust-enrichment claim fails because the written warranty that accompanied Plaintiffs’ oven governs their relationship with Whirlpool. This claim fails as a matter of law and should be dismissed with prejudice. This motion is based upon this notice, the attached memorandum of points and authorities, and the Declaration of Paula A. Haines submitted in support of the attached memorandum of points and authorities. This motion is made following Whirlpool’s conference with Plaintiffs’ counsel pursuant to L.R. 7-3. On December 20, 2016, Whirlpool’s counsel emailed to Plaintiffs’ counsel a detailed Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 2 of 25 Page ID #:97 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 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) summary of arguments Whirlpool contemplated raising in a motion to dismiss and requested dates Plaintiffs’ counsel was available to discuss the arguments in further detail. On December 21, 2016, Plaintiffs’ counsel responded by email, indicating that they had reviewed Whirlpool’s arguments and concluded the complaint was well-pled. Instead of scheduling a further conference, Plaintiffs’ counsel requested that the parties agree to a hearing date and a briefing schedule for Whirlpool’s motion to dismiss. (See Ex. 1.) Dated: January 9, 2017 WHEELER TRIGG O’DONNELL LLP By: /s/ Andrew M. Unthank Andrew M. Unthank (admitted pro hac vice) Ashley R. Fickel (237111) Laura J. McNabb (admitted pro hac vice) Attorneys for Defendant, Defendant Whirlpool Corporation Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 3 of 25 Page ID #:98 EXHIBIT 1 TO DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION TO DISMISS CLASS ACTION COMPLAINT Page 4 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 4 of 25 Page ID #:99 1 From: Robert Friedl Sent: Wednesday, December 21, 2016 10:35 AM To: McNabb, Laura; Lee Cirsch; Trisha Monesi Cc: Unthank, Andrew; Bowerman, Norah Subject: RE: Whitley v. Whirlpool - conferral re motion to dismiss Laura, Thank you for your summary of the substance of your contemplated motion. We have considered your arguments and feel that the complaint is well pleaded. Accordingly, we would like to agree upon a hearing date and briefing schedule. Thx. Bob From: McNabb, Laura [mailto:McNabb@wtotrial.com] Sent: Tuesday, December 20, 2016 6:12 PM To: Robert Friedl; Lee Cirsch; Trisha Monesi Cc: Unthank, Andrew; Bowerman, Norah Subject: Whitley v. Whirlpool - conferral re motion to dismiss Robert, Lee, and Trisha, As we discussed during our last phone call, below please find a summary of the possible arguments Whirlpool may raise in a motion to dismiss. Please let us know if you are available to confer in the afternoon tomorrow (Wednesday) or Thursday. I. Implied Warranty Claims Fail  Durational limit on implied warranties: The written warranty that accompanied Plaintiffs’ oven contains a one‐year durational limitation on implied warranties. Both of the problems Plaintiffs allege with their oven (i.e., glass breakage, fuse trip) occurred outside of that one‐year period. Thus, the Complaint contains no factual allegations that the product was unfit for ordinary purpose within the implied warranty period.  No notice, opportunity to cure: The Complaint does not allege that Plaintiffs notified Whirlpool of either issue with the oven or that Whirlpool refused to fix the oven. The demand letter sent two weeks before filing the complaint is insufficient to constitute notice. Plaintiffs’ allegation that Whirlpool “has been afforded a reasonable opportunity to cure its breach” is a legal conclusion and thus not a well‐ pled factual allegation.  Oven was merchantable: Case law establishes that the merchantability is not evaluated at the component level; Plaintiffs’ oven was merchantable because Plaintiffs used the oven for its ordinary and intended use-preparing food-for approximately three years (from the time of purchase in September 2013 until the fuse allegedly tripped during the self‐clean cycle in July 2016). To the extent Plaintiffs attempt to assert a “particular purpose” claim, Plaintiffs fail to allege what the particular purpose is or that Whirlpool knew about it. Page 5 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 5 of 25 Page ID #:100 2  No privity with Whirlpool: The Complaint does not allege facts to create an inference that Plaintiffs were in privity of contract with Whirlpool. II. Consumer Protection Claims Fail  No knowledge: The Complaint does not sufficiently allege Whirlpool’s knowledge of the alleged defect at the time Plaintiffs purchased their oven.  No prohibited conduct: The Complaint fails to sufficiently allege conduct prohibited under either the CLRA or the UCL and to sufficiently allege Whirlpool had a duty to disclose. III. Unjust Enrichment Claim Fails  An express contract governs: The written warranty that accompanied Plaintiffs’ oven governs their relationship with Whirlpool, so this quasi‐contract unjust‐enrichment claim fails.  Adequate remedy at law: The unjust enrichment claim is based on the same factual allegations that underpin the consumer protection claims, meaning that the unjust enrichment claim fails because Plaintiffs have an adequate remedy at law. Kindly, Laura Laura J. McNabb | Associate Wheeler Trigg O’Donnell LLP 370 17th Street | Suite 4500 | Denver CO 80202 P 303.244.1822 | F 303.244.1879 mcnabb@wtotrial.com | wtotrial.com | vCard Page 6 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 6 of 25 Page ID #:101 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 i DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) TABLE OF CONTENTS Table of Authorities ........................................................................................................ ii Memorandum of Points and Authorities ......................................................................... 1 Introduction ..................................................................................................................... 1 Summary of Plaintiffs’ Allegations ................................................................................ 2 Standard of Review ......................................................................................................... 3 Argument ........................................................................................................................ 3 I. PLAINTIFFS FAIL TO STATE IMPLIED WARRANTY CLAIMS ................ 3 A. Plaintiffs Do Not Allege that Their Oven Was Unmerchantable within the One-Year Durational Limit ....................................................... 4 B. Plaintiffs Fail to Plead Facts Suggesting Their Oven Was Unfit for Its Ordinary Purpose of Cooking Food ...................................................... 5 II. PLAINTIFFS FAIL TO STATE CONSUMER PROTECTION CLAIMS......... 6 A. Plaintiffs’ CLRA and UCL Claims Fail Because They Do Not Adequately Allege Whirlpool Had Pre-Sale Knowledge of the Defect ......................................................................................................... 7 1. Two TSPs not related to Plaintiffs’ oven do not demonstrate Whirlpool’s knowledge.................................................................... 7 2. Seven anonymous and unverified online complaints do not demonstrate Whirlpool’s knowledge ............................................... 8 3. Speculative and vague sources “not available to consumers” do not demonstrate Whirlpool’s knowledge .................................... 9 B. Plaintiffs’ CLRA Claim and UCL Claim for “Fraudulent” Business Practices Fail Because They Do Not Adequately Allege Whirlpool Had a Duty to Disclose the Defect ........................................................... 10 C. Plaintiffs Fail to State a UCL Claim for “Unlawful” or “Unfair” Business Practices .................................................................................... 11 III. PLAINTIFFS FAIL TO STATE AN UNJUST ENRICHMENT CLAIM BECAUSE THE WRITTEN WARRANTY GOVERNS THEIR RELATIONSHIP WITH WHIRLPOOL ........................................................... 13 Conclusion .................................................................................................................... 14 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 7 of 25 Page ID #:102 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 ii DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) TABLE OF AUTHORITIES CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................................................................... 3 Baba v. Hewlett-Packard Co., No. C 09-05946 RS, 2011 WL 317650 (N.D. Cal. Jan. 28, 2011) .......................................................... 7, 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)................................................................................................... 3 Berryman v. Merit Prop. Mgmt., Inc., 62 Cal. Rptr. 3d 177 (Cal. Ct. App. 2007) ............................................................... 12 Burdt v. Whirlpool Corp., No. C 15-01563 JSW, 2015 WL 4647929 (N.D. Cal. Aug. 5, 2015) .................................................. 5, 6, 13 Cal.Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal., Inc., 114 Cal. Rptr. 2d 109 (Cal. Ct. App. 2001) ............................................................. 14 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163 (1999) ............................................................................................. 12 Daugherty v. Am. Honda Motor Co., Inc., 51 Cal. Rptr. 3d 118 (Cal. Ct. App. 2007) ......................................................... 10, 12 Davidson v. Kimberly-Clark Corp., 76 F.Supp.3d 964 (N. D. Cal. 2014) ...................................................................... 3, 7 Elsayed v. Maserati N. Am., Inc., ___ F.Supp.___, 2016 WL 6091109 (C.D. Cal. Oct. 18, 2016) .............................. 12 Friedman v. Guthy-Renker LLC, No. 2:14-CV-06009-ODW (AGRx), 2015 WL 857800 (C.D. Cal. Feb. 27, 2015) ........................................................... 14 Grodzitsky v. Am. Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 2631326 (C.D. Cal. June 12, 2013) ................................................................ 4, 9 In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077 (S.D. Cal. 2010) ..................................................................... 5 Kelly v. Beazer Homes USA, Inc., 552 F. App’x 666 (9th Cir. 2014) ............................................................................ 12 Kent v. Hewlett-Packard Co., No. 09-5341 JF (PCT), 2010 WL 2681767, (N.D. Cal. July 6, 2010) .................................................... 4, 5, 6 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 8 of 25 Page ID #:103 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 iii DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) Kirsopp v. Yamaha Motor Co. Ltd., No. CV14-00496 BRO (VBKx), 2015 WL 11197829 (C.D. Cal. Jan. 7, 2015). ........................................................... 4 Luxul Tech. Inc. v. NectarLux, LLC, No. 14-CV-03656-LHK, 2015 WL 4692571, (N.D. Cal. Aug. 6, 2015) ......................................................... 13 Maguca v. Aurora Loan Servs., No. SACV 09-1086 JVS (ANx), 2009 WL 3467750 (C.D. Cal. Oct. 28, 2009) ......................................................... 13 Missaghi v. Apple Inc., No. CV-13-02003 GAF(AJWX), 2013 WL 12114470 (C.D. Cal. Aug. 28, 2013) ...................................................... 11 Phillips v. P.F. Chang’s China Bistro, Inc., No. 5:15-CV-0344-RMW, 2015 WL 4694049 (N.D. Cal. Aug. 6, 2015) .......................................................... 14 Rice v. Sunbeam Prods., Inc., No. CV 12-7923-CAS-(AJWx), 2013 WL 146270 (C.D. Cal. Jan. 7, 2013) ................................................................ 9 Rutherford Holdings, LLC v. Plaza Del Rey, 166 Cal. Rptr. 864 (Cal. Ct. App. 2014) .................................................................. 13 Sater v. Chrysler Grp. LLC, No. EDCV 14-00700-VAP (DTBx), 2015 WL 736273 (C.D. Cal. Feb. 20, 2015) ........................................................... 14 Sharma v. BMW of N. Am. LLC, No. 13-CV-02274-MMC, 2016 WL 4395470 (N.D. Cal. Aug. 18, 2016) ........................................................ 10 Smith v. LG Elecs. U.S.A., Inc., No. C 13-4361 PJH, 2014 WL 989742, (N.D. Cal. Mar. 11, 2014) ................ passim Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 1635931 (N.D. Cal. June 5, 2009) ........................... 5, 12 T & M Solar & Air Conditioning, Inc. v. Lennox Int’l Inc., 83 F. Supp. 3d 855 (N.D. Cal. 2015) ......................................................................... 6 Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962 (C.D. Cal. 2014) ..................................................................... 13 Taragan v. Nissan N. Am., Inc., No. C 09-3660 SBA, 2013 WL 3157918 (N.D. Cal. June 20, 2013) ........................ 4 Tietsworth v. Sears, 720 F. Supp. 2d 1123 (N.D. Cal. 2010) ............................................................... 4, 12 Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 2012) ......................................................................... 7, 9, 10 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 9 of 25 Page ID #:104 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 iv DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) OTHER AUTHORITIES Cal. Bus. & Prof. Code § 17200 ..................................................................................... 6 Cal. Civ. Code § 1770 ..................................................................................................... 6 Cal. Civ. Code § 1791 ..................................................................................................... 4 RULES Fed. R. Civ. P. 9 .......................................................................................................... 3, 7 Rule 12 ............................................................................................................................ 3 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 10 of 25 Page ID #:105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs allege five claims on behalf of putative nationwide and California classes of consumers who bought any Whirlpool- or KitchenAid-brand built-in wall oven equipped with a high-temperature self-cleaning feature over an undefined period of time (“Subject Ovens”). (ECF No. 1, Compl. ¶¶ 1, 54-55.) Plaintiffs allege that these ovens contain some unspecified design defect that causes the ovens to malfunction during the self-clean cycle and, as a result, to remain locked at the end of the cycle. (Id. ¶ 2.) According to Plaintiffs, Whirlpool knew that the Subject Ovens contained a design defect but nonetheless failed to disclose or remedy the defect. (Id. ¶¶ 7-8, 11, 13.) Based on these vague and conclusory allegations, Plaintiffs contend that Whirlpool violated the Song-Beverly Consumer Warranty Act (“SBA”) (Count 3); the Magnuson-Moss Warranty Act (“MMWA”) (Count 4); California’s Consumers Legal Remedies Act (“CLRA”) (Count 1), and California’s Unfair Competition Law (“UCL”) (Count 2). Plaintiffs further assert a claim for unjust enrichment (Count 5). The Court should dismiss Plaintiffs’ Complaint in its entirety for failure to state claims under Federal Rules of Civil Procedure 8(a), 9(b), and 12(b)(6). First, Plaintiffs fail to state implied-warranty claims under either the SBA or the MMWA because they do not allege that their oven was unmerchantable within the one-year durational limit, nor do they adequately allege that it was unfit for its ordinary purpose of cooking food. Second, Plaintiffs fail to state consumer protection claims because they do not adequately allege that Whirlpool had pre-sale knowledge of the alleged defect, as required under both the CLRA and the UCL. Further, Plaintiffs’ CLRA claim and UCL claim for “fraudulent” business practices fail because they do not adequately allege that Whirlpool had a duty to disclose the alleged defect. Finally, Plaintiffs’ UCL claim for “unfair” or “unlawful” business practices fails because they do not plead conduct amounting to a prohibited practice. Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 11 of 25 Page ID #:106 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 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) Third, Plaintiffs fail to state an unjust enrichment claim because the written warranty that accompanied their oven is a valid contract that defines the parties’ rights and obligations. SUMMARY OF PLAINTIFFS’ ALLEGATIONS On or around September 10, 2013, Plaintiffs purchased an oven from Pacific Sales in Orange County, California. (Compl. ¶ 17.) Plaintiffs’ oven, like all of the Subject Ovens, came equipped with a high-temperature self-cleaning cycle. (Id. ¶¶ 17- 18.) On January 9, 2015-nearly 16 months after buying their oven-Plaintiffs ran the self-clean cycle for the first time. (Id. ¶ 23.) During this cycle, the oven’s door glass broke. (Id. ¶ 24.) The glass was thereafter replaced. (Id.) Then, on July 17, 2016-nearly three years after buying their oven-Plaintiffs ran the self-clean cycle for the second time. (Id. ¶¶ 24-25.) At some point during this cycle, Plaintiffs discovered that the oven’s controls were unresponsive. (Id. ¶ 25.) When the cycle completed, the controls remained unresponsive and the oven door remained locked. (Id.) Plaintiffs make no allegations about efforts to repair their oven, but they do allege that they “promptly sought out and retained legal counsel.” (Id.) They filed this putative nationwide class action shortly thereafter. Although Plaintiffs do not allege that they suffered personal injuries or property damage beyond the oven, they nonetheless contend that their oven presents “an unreasonable safety risk.” (See, e.g., id. ¶¶ 41, 43) Plaintiffs further allege that Whirlpool had “superior and exclusive” knowledge of the alleged defect in their oven prior to their September 2013 purchase. (Id. ¶ 44.) They attempt to support this conclusion with two Technical Service Pointers (“TSPs”) issued in January 2011 and September 2012 (id. ¶¶ 46-47) and a smattering of anonymous online complaints, only seven of which clearly reference a Subject Oven and pre-date Plaintiffs’ oven purchase (id. ¶ 42 (dd-ff, hh-jj, ll)). They also vaguely speculate that Whirlpool had knowledge of the alleged defect through certain other sources “not available to consumers.” (Id. ¶ 45). Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 12 of 25 Page ID #:107 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 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) STANDARD OF REVIEW Under Rule 12(b)(6), a complaint may be dismissed if it fails to state a claim upon which relief can be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard asks for “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Thus, to proceed past the pleading stage, Plaintiffs’ allegations must rise above mere speculation, suspicion, or unsupported conclusions and must instead show entitlement to relief. See Twombly, 550 U.S. at 555. Additionally, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Because Plaintiffs accuse Whirlpool of fraudulent omissions, their CLRA and UCL claims are subject to Rule 9(b)’s heightened pleading standard. Smith v. LG Elecs. U.S.A., Inc., No. C 13-4361 PJH, 2014 WL 989742, at *11 (N.D. Cal. Mar. 11, 2014); Davidson v. Kimberly-Clark Corp., 76 F.Supp.3d 964, 975-76 (N. D. Cal. 2014). ARGUMENT All of Plaintiffs’ claims fail, even if the Complaint’s well-pleaded facts are accepted as true and construed in the light most favorable to Plaintiffs. The Court should therefore dismiss Plaintiffs’ Complaint in its entirety. I. PLAINTIFFS FAIL TO STATE IMPLIED WARRANTY CLAIMS Plaintiffs allege that Whirlpool breached the implied warranty of merchantability under both the SBA and the MMWA.1 But they do not state 1 It is unclear whether Plaintiffs also intend to assert a claim for breach of an implied warranty of fitness for a particular purpose. (Compl. ¶ 95.) To the extent they do, that claim must be dismissed because Plaintiffs allege no facts that, if true, show Plaintiffs bought their oven for a particular purpose or how the purported defect rendered the oven unfit for that unspecified particular purpose. See, e.g., Smith, 2014 Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 13 of 25 Page ID #:108 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 4 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) actionable implied-warranty claims for two reasons.2 First, Plaintiffs do not allege that the problems with their oven manifested within the one-year durational limit. Second, Plaintiffs do not allege that their oven was unfit for its ordinary purpose of cooking food. A. Plaintiffs Do Not Allege that Their Oven Was Unmerchantable within the One-Year Durational Limit Under California law, the duration of an implied warranty of merchantability for new consumer goods is one year if the express warranty that accompanied the goods is one year or more. See Cal. Civ. Code § 1791.1(c); Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1142 (N.D. Cal. 2010). The written warranty that accompanied Plaintiffs’ oven extends for one year or more. (See Decl. of Paula A. Haines, Ex. 13). “Thus, any implied warranties for [Plaintiffs’ oven] were valid for a period of no more than one year from the date of purchase.” Smith, 2014 WL 989742, at *7. Plaintiffs’ implied warranty claims are premised on an alleged defect in their oven that causes it to malfunction during the self-clean cycle. (See Compl. ¶¶ 96, 98, 108.) Plaintiffs bought their oven in September 2013. (Id. ¶ 17.) However, they did not even attempt to run a self-clean cycle until January 2015-nearly 16 months later. (Id. ¶ 23.) Although Plaintiffs claim that they experienced “the defect” during that January 2015 self-clean cycle, and then again during a subsequent cycle in July 2016 (id. ¶¶ 23-25), neither incident occurred within a year of their purchase. These are the only self-clean incidents about which Plaintiffs complain. Plaintiffs therefore fail to allege any facts that, if true, show the problems with their oven manifested within the WL 989742, at *7-8; Kent v. Hewlett-Packard Co., No. 09-5341 JF (PCT), 2010 WL 2681767, at *5 (N.D. Cal. July 6, 2010). 2 The relevant legal standards for Plaintiffs’ SBA and MMWA claims do not differ for purposes of the arguments Whirlpool raises here. See Taragan v. Nissan N. Am., Inc., No. C 09-3660 SBA, 2013 WL 3157918, at *5 (N.D. Cal. June 20, 2013). 3 The Complaint does not reference or attach the written warranty. This Court can nonetheless consider it under the incorporation by reference doctrine because the warranty’s expiration is relevant to Plaintiffs’ implied warranty claims and its existence is relevant to Plaintiffs’ unjust enrichment claim. See Grodzitsky v. Am. Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 2631326, at *1 n.2 (C.D. Cal. June 12, 2013); see also Kirsopp v. Yamaha Motor Co. Ltd., No. CV14-00496 BRO (VBKx), 2015 WL 11197829, at *3 (C.D. Cal. Jan. 7, 2015). Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 14 of 25 Page ID #:109 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 5 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) one-year durational limit. Accordingly, their implied-warranty claims fail as a matter of law and must be dismissed with prejudice.4 See In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077, 1100- 01 (S.D. Cal. 2010) (dismissing implied warranty claims with prejudice because plaintiffs did not sufficiently allege that defendant breached an implied warranty within the limitation period). B. Plaintiffs Fail to Plead Facts Suggesting Their Oven Was Unfit for Its Ordinary Purpose of Cooking Food To succeed on their implied warranty claims, Plaintiffs must establish their oven was unfit “for the ordinary purpose for which such goods are used.” Burdt v. Whirlpool Corp., No. C 15-01563 JSW, 2015 WL 4647929, at *5 (N.D. Cal. Aug. 5, 2015) (citation omitted). “The implied warranty of merchantability does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality.” Kent, 2010 WL 2681767, at *4 (citation omitted). Thus, the “mere manifestation of a defect by itself does not constitute a breach [of] the implied warranty of merchantability.” Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 1635931, at *8 (N.D. Cal. June 5, 2009). Plaintiffs allege no facts suggesting that their oven was unfit for its ordinary purpose of cooking food. See Burdt, 2015 WL 4647929, at *6. Plaintiffs used the oven without incident for nearly 16 months before the door glass broke during the first self- clean cycle. The glass was replaced, and then another year-and-a-half passed without incident before the oven door remained locked at the end of the second self-clean cycle. (Compl. ¶¶ 17, 23-25.) The long and uneventful periods of time between self- clean cycles demonstrate that Plaintiffs were able to safely use the oven for its intended purpose of cooking food. Although Plaintiffs allege that their oven has a 4 Plaintiffs’ allegation that the defect was “inherent” in their oven “at the time of sale” does not alter this conclusion (Compl. ¶ 39). See Smith, 2014 WL 989742, at *7-9, 12 (dismissing with prejudice SBA and MMWA implied warranty claims that were based “on events that occurred more than a year after the date of purchase” notwithstanding plaintiff’s allegations that the defect was “latent” and “hidden from consumers who could not have identified the defect”). Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 15 of 25 Page ID #:110 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 6 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) defect that occurs during normal operation of the self-clean cycle (id. ¶ 2), they do not allege that this defect renders the whole product unfit to cook food. See T & M Solar & Air Conditioning, Inc. v. Lennox Int’l Inc., 83 F. Supp. 3d 855, 878 (N.D. Cal. 2015) (explaining that a product is “generally considered merchantable even if certain functions” of the product “do not operate as promised” (quotation marks omitted)). Thus, their implied warranty claims must be dismissed.5 See Burdt, 2015 WL 4647929, at *6 (dismissing implied warranty claim where oven roll-out rack slipped off the rack guides and injured plaintiff because she had used the oven for its intended “ordinary purpose of cooking” without incident for 11 months). II. PLAINTIFFS FAIL TO STATE CONSUMER PROTECTION CLAIMS Plaintiffs assert consumer protections claims under both the CLRA and the UCL based on Whirlpool’s alleged failure to disclose the “self-clean defect.” As relevant here, the CLRA prohibits representing that goods (1) have characteristics which they do not have, and (2) are of a particular standard, quality, or grade, if they are of another. See Cal. Civ. Code § 1770(a)(5), (7). The UCL, in turn, proscribes (1) fraudulent, (2) unlawful, or (3) unfair business practices. See Cal. Bus. & Prof. Code § 17200. Plaintiffs’ CLRA and UCL claims should be dismissed for three reasons. First, both claims fail because they do not adequately allege that Whirlpool had pre-sale knowledge of the alleged defect. Second, the CLRA claim and the UCL claim for “fraudulent” businesses practices fail because they do not adequately allege that Whirlpool had a duty to disclose the alleged defect. Third, Plaintiffs fail to allege facts sufficient to state a UCL claim for “unlawful” or “unfair” business practices. 5 Plaintiffs’ suggestion that the oven remains inoperable following the second self-clean cycle does not change this result (Compl. ¶ 25), as Plaintiffs do not allege that they made any attempt to repair the oven, that such a repair attempt would not render their oven fit for its ordinary purpose of cooking food, or that they still have the oven but are unable to use it to cook. Cf. Kent, 2010 WL 2681767, at *4 (allegations of inconvenience insufficient to state claim where product remained usable). Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 16 of 25 Page ID #:111 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 7 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) A. Plaintiffs’ CLRA and UCL Claims Fail Because They Do Not Adequately Allege Whirlpool Had Pre-Sale Knowledge of the Defect To plead CLRA and UCL claims based on omissions, Plaintiffs must sufficiently allege that Whirlpool was aware of the “self-clean defect” at the time of sale. See Smith, 2014 WL 989742, at *12 (explaining that a defendant’s knowledge of the alleged defect “at the time of the sale” is a requirement under both the CLRA and the UCL); see also Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1145 (9th Cir. 2012); Baba v. Hewlett-Packard Co., No. C 09-05946 RS, 2011 WL 317650, at *3-4 (N.D. Cal. Jan. 28, 2011). Plaintiffs do not plausibly allege-let alone with the particularity required by Rule 9(b)6-that Whirlpool had knowledge of the alleged defect at the time of Plaintiffs’ September 2013 purchase. According to Plaintiffs, Whirlpool had “superior and exclusive” knowledge about the “self-clean defect” since January 2000 but nonetheless failed to disclose to them the existence of that defect. (See, e.g., Compl. ¶¶ 40, 44, 50, 66, 72, 79, 83, 86.) To demonstrate this exclusive pre-sale knowledge, Plaintiffs rely on two Technical Service Pointers (“TSPs”) issued in January 2011 and September 2012, respectively (id. ¶¶ 46-47), online consumer complaints (id. ¶ 42), and certain other sources “not available to consumers” (id. ¶ 45). None of these can save Plaintiffs’ CLRA and UCL claims. 1. Two TSPs not related to Plaintiffs’ oven do not demonstrate Whirlpool’s knowledge Plaintiffs do not allege that the two TSPs they identify apply in any way to their oven model or to any of the specific components they allege malfunctioned in their oven.7 Absent allegations making these connections, Plaintiffs cannot plausibly allege that these TSPs demonstrate Whirlpool’s “superior and exclusive knowledge” of any 6 See Davidson, 76 F. Supp. 3d at 975-76 (dismissing fraudulent omission CLRA and UCL claims under both Rule 9(b) and Rule 8). 7 For example, Plaintiffs allege that the September 2012 TSP relates to an issue with an oven’s door latch assembly but their own claims are premised on alleged problems with their oven’s door glass and power supply. (Compare id. ¶ 47, with id. ¶¶ 23-25.) Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 17 of 25 Page ID #:112 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 8 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) alleged defect in their oven or its components. (See, e.g., Compl. ¶¶ 7, 44.) Further, Plaintiffs do not allege that these TSPs-which each identify a specific problem and offer a specific repair solution-contain any information regarding the frequency with which consumers experience the problems identified. Absent such information, the mere existence of two TSPs is insufficient to establish that Whirlpool actually knew that Plaintiffs’ oven would experience the problems it did during the self-clean cycle. 2. Seven anonymous and unverified online complaints do not demonstrate Whirlpool’s knowledge Although Plaintiffs allege that “[c]omplaints from consumers to Whirlpool’s social media website, Consumer Reports, and other online complaint forums” demonstrate Whirlpool’s knowledge of the “defect,” they only specifically identify 38 complaints posted on ConsumerAffairs.com between 2011 and 2016. (Id. ¶ 42.) Of these complaints, only seven both clearly reference a Subject Oven and pre-date Plaintiffs’ oven purchase. (Id. ¶ 42 (dd-ff, hh-jj, ll)). Plaintiffs fail to allege, however, that any of those seven complaints (or any of the remaining 31 complaints alleged) involve the same model as their oven or even the same components found in their oven. (Id.) Further, Plaintiffs’ reliance on these seven online complaints-which were posted on a publically accessible and widely used consumer website-is an admission that information about the alleged defect was equally available to them prior to their oven purchase. Thus, to the extent Plaintiffs allege that these anonymous and unverified complaints impute pre-sale knowledge of the alleged defect to Whirlpool (id. ¶ 42), they certainly impute the same pre-purchase knowledge to Plaintiffs and thus foreclose any inference that Whirlpool had “superior and exclusive” knowledge (id. ¶ 44). Finally, even if these online complaints didn’t suffer from these obvious shortcomings, seven complaints in the aggregate fall far short of triggering a duty to disclose. Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 18 of 25 Page ID #:113 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 9 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) 3. Speculative and vague sources “not available to consumers” do not demonstrate Whirlpool’s knowledge Plaintiffs’ boilerplate allegations that Whirlpool had knowledge of the defect through sources not available to consumers (e.g., pre- and post-release testing, failure rates, replacement parts sales data, and other internal sources of aggregate information (id. ¶ 45)) are speculative and vague. Courts routinely reject consumer protection claims founded on similarly vague knowledge allegations. See, e.g., Wilson, 668 F.3d at 1147 (finding allegation that defendant “had access to the aggregate information and data regarding the risk of [the defect] [wa]s speculative and d[id] not suggest how any tests or information could have alerted [defendant] to the defect” (quotation marks omitted)); Rice v. Sunbeam Prods., Inc., No. CV 12-7923-CAS-(AJWx), 2013 WL 146270, at *7 (C.D. Cal. Jan. 7, 2013) (dismissing CLRA claim where allegations of knowledge based on unspecified “customer service/warranty service call center records for returns and/or complaints” and “numerous individual letters” were “boilerplate and unsubstantiated by factual detail”). * * * In sum, Plaintiffs’ CLRA and UCL claims fail because two TSPs not related to their oven, seven anonymous and unverified online complaints, and vague testing and other internal records do not create a plausible inference that Whirlpool had pre-sale knowledge of the alleged defect. See Wilson, 668 F.3d at 1145-48 (dismissing CLRA and UCL claims where plaintiff alleged knowledge of a defect based on 14 consumer complaints, a prior lawsuit involving the same defect on a different model, and the manufacturer’s “access to the aggregate information and data regarding the risk of overheating”); Grodzitsky, 2013 WL 690822, at *6-8 (dismissing CLRA and UCL claims because knowledge was not plausibly asserted by references to three manufacturer service bulletins, 10 online complaints, testing data, replacement parts data, dealer reports, and a servicer’s statement that the defect was well known and widespread); Baba, 2011 WL 317650, at *3-6 (dismissing CLRA and UCL claims for Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 19 of 25 Page ID #:114 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 10 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) failure to adequately plead defendant’s pre-sale knowledge of a defect where Complaint identified 26 internet complaints made prior to plaintiff’s purchase). These claims must be dismissed. B. Plaintiffs’ CLRA Claim and UCL Claim for “Fraudulent” Business Practices Fail Because They Do Not Adequately Allege Whirlpool Had a Duty to Disclose the Defect Plaintiffs do not allege that Whirlpool made any affirmative misrepresentations. Instead, their CLRA and “fraudulent” UCL claims are premised on Whirlpool’s alleged failure to fulfill its duty to disclose “the defective nature” of the Subject Ovens.8 (See, e.g., Compl. ¶¶ 66, 70-72, 79, 83, 86.) To prevail on their fraudulent-omission theory, plaintiffs must adequately plead that Whirlpool had a duty to disclose the “self-clean defect.” See Wilson, 668 F.3d at 1141 (“[A]bsent a duty to disclose, the failure to disclose a defect ‘that might, or might not’ shorten the useful life of a [product] that ‘functions precisely as warranted throughout the term of its express warranty’ is not an unfair or fraudulent business practice under the UCL.” (quoting Daugherty, 51 Cal. Rptr. 3d at 130)). Under California law, manufacturers have a duty to disclose defects that manifest outside the warranty period only if (1) there has been an affirmative misrepresentation, or (2) the defects pose unreasonable safety hazards.9 See Gray v. Toyota Motor Sales, U.S.A., Inc., 554 F. App’x 608, 609 (9th Cir. 2014); Sharma v. BMW of N. Am. LLC, No. 13- CV-02274-MMC, 2016 WL 4395470, at *4-5 (N.D. Cal. Aug. 18, 2016). Plaintiffs do not adequately allege either an affirmative misrepresentation or an unreasonable safety hazard giving rise to a duty to disclose defects that manifest outside of the warranty period. First, the TSPs, which are intended to assist servicers in diagnosing and repairing problems for consumers whose ovens experience an issue 8 An actionable omission “must be contrary to a representation actually made by the defendant, or an omission of fact the defendant was obliged to disclose.” Daugherty v. Am. Honda Motor Co., Inc., 51 Cal. Rptr. 3d 118, (Cal. Ct. App. 2007). Plaintiffs’ frame their claims in terms of the latter option. 9 “A duty to disclose under UCL requires the same showing as a duty to disclose under CLRA.” Smith, 2014 WL 989742, at *10. Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 20 of 25 Page ID #:115 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 11 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) during the self-clean cycle, are the only affirmative Whirlpool representations alleged in the Complaint that relate to the cleaning feature. (Compl. ¶¶ 46-47). Plaintiffs, however, have not alleged, and cannot allege, that these TSPs contain any affirmative misrepresentation about the self-clean feature. Second, Plaintiffs’ conclusory safety allegations are not sufficient to permit a plausible inference that their oven poses an unreasonable safety hazard. (See, e.g., Compl. ¶¶ 7, 13, 37, 41-43.) In their most specific safety allegation, Plaintiffs assert that the “self-cleaning defect” causes “unsafe conditions” and “an increased risk of fire” that “present a safety hazard because they severely affect the safe operation of the oven and can lead to burns, smoke inhalation, cuts and house fires.” (Id. ¶ 41 (emphasis added).) Notably, however, Plaintiffs do not allege that they or anyone else was burned or cut, or experienced smoke inhalation or a house fire, as a result of using the self-clean feature on their oven.10 Although Plaintiffs identify some consumer complaints that allude to such “safety hazards” (see, e.g., id. ¶¶ 42 (j, r, ee)), none of these anonymous and unverified complaints provides sufficient factual information to permit an inference that Plaintiffs’ model of oven poses an unreasonable safety hazard, see supra p. 8. Plaintiffs’ conclusory and theoretical allegations that their oven presents a “safety hazard” are insufficient to state a claim under the CLRA or the “fraudulent” prong of the UCL. These claims must be dismissed. See Missaghi v. Apple Inc., No. CV-13-02003 GAF(AJWX), 2013 WL 12114470, at *8 (C.D. Cal. Aug. 28, 2013) (dismissing UCL claim where plaintiffs alleged that a design defect in iPhones could prevent users from contacting 911 because this alleged safety hazard was “far too speculative to warrant imposing a duty to disclose”). C. Plaintiffs Fail to State a UCL Claim for “Unlawful” or “Unfair” Business Practices To state an “unlawful” UCL claim, a plaintiff must assert a violation of some other law. See Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 10 Indeed, Plaintiffs expressly exclude from their purported classes any person who suffered personal injuries. (Id. ¶ 56.) Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 21 of 25 Page ID #:116 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 12 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) 163, 178-81(1999). Here, Plaintiffs base their “unlawful” UCL theory on alleged violations of the SBA, the MMWA, and the CLRA. (Compl. ¶ 88.) However, Plaintiffs fail to state claims for violations of these predicate laws, as discussed above in Section I and Section II.A-B. Thus, Plaintiffs necessarily fail to state a claim under the “unlawful” prong of the UCL, and that claim must be dismissed. See, e.g., Kelly v. Beazer Homes USA, Inc., 552 F. App’x 666, 668 (9th Cir. 2014) (affirming dismissal of “unlawful” UCL claim where Plaintiffs failed to state a claim for any “predicate violations”); Daugherty, 51 Cal. Rptr. 3d at 128 (dismissing “unlawful” UCL claim predicated on violations of the MMWA and the CLRA because the court concluded neither statute was violated). Their claim under the “unfair” prong of the UCL also requires dismissal. Courts have employed three different standards to determine whether a business practice is “unfair.” See Elsayed v. Maserati N. Am., Inc., ___ F.Supp.___, 2016 WL 6091109, at *13 (C.D. Cal. Oct. 18, 2016) (Carney, J.). Assuming arguendo that the most lenient standard applies, Plaintiffs can state a claim if they allege sufficient facts to demonstrate a consumer injury that “is substantial, is not outweighed by any countervailing benefits to consumers or to competition, and is not an injury the consumers themselves could reasonably have avoided.” Id. (quoting Berryman v. Merit Prop. Mgmt., Inc., 62 Cal. Rptr. 3d 177, 186 (Cal. Ct. App. 2007)). Here, Plaintiffs assert that Whirlpool engaged in “unfair” practices, but they make no clear or specific attempt to allege facts that, if true, would satisfy the above standard. (See generally Compl. ¶¶ 77-92). This alone requires dismissal.11 See Stearns, 2009 WL 1635931, at *17 (dismissing “unfair” UCL claim because it was not clear from plaintiffs’ conclusory allegations whether they actually satisfied the standards 11 To the extent the Complaint contains allegations that conceivably are relevant to establishing “unfair” business practices, those allegations are conclusory and therefore insufficient to state an “unfair” UCL claim. See Tietsworth, 720 F. Supp. 2d at 1137 (dismissing “unfair” UCL claim and finding allegations that defendants “knowingly [] market and sell a defective product” insufficient to allege there is no countervailing benefit to consumers). Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 22 of 25 Page ID #:117 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 13 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) necessary to plead an “unfair” business practice); see also Maguca v. Aurora Loan Servs., No. SACV 09-1086 JVS (ANx), 2009 WL 3467750, at *4 (C.D. Cal. Oct. 28, 2009) (Carney, J.) (dismissing UCL claim for lack of specificity and emphasizing that a plaintiff “must state with reasonable particularity the facts supporting the statutory elements of the violation”). Moreover, “[t]he failure to disclose a defect that a manufacturer does not have a duty to disclose, i.e., a defect of which it is not aware, does not constitute an unfair or fraudulent practice” under the UCL. Burdt, 2015 WL 4647929, at *8. Thus, Plaintiffs’ “unfair” claim must be dismissed for the additional reason that Plaintiffs fail to sufficiently allege Whirlpool’s pre-sale knowledge of the alleged defect, supra p. 7- 10. See Burdt, 2015 WL 4647929, at *8 (dismissing “unfair” UCL claim where plaintiff failed to adequately allege facts showing defendant’s knowledge of the alleged defect). III. PLAINTIFFS FAIL TO STATE AN UNJUST ENRICHMENT CLAIM BECAUSE THE WRITTEN WARRANTY GOVERNS THEIR RELATIONSHIP WITH WHIRLPOOL Plaintiffs also assert an unjust enrichment claim, alleging that they conferred an unjust and substantial benefit on Whirlpool as a result of its “failure to disclose known defects” in the Subject Ovens. (Compl. ¶¶ 116-18.) Plaintiffs’ unjust enrichment claim fails as a matter of law because the written warranty that accompanied Plaintiffs’ oven governs their relationship with Whirlpool.12 Under California law there is no standalone cause of action for unjust enrichment; thus, where, as here, a plaintiff alleges unjust enrichment, a court may construe those allegations “as a quasi-contract claim seeking restitution.” Rutherford Holdings, LLC v. Plaza Del Rey, 166 Cal. Rptr. 864, 872 (Cal. Ct. App. 2014). However, it is well-settled that an action based in quasi-contract “cannot lie where 12 Because dismissal is warranted as a matter of law, the Court should dismiss Plaintiffs’ unjust-enrichment claim with prejudice. See, e.g., Luxul Tech. Inc. v. NectarLux, LLC, No. 14-CV-03656-LHK, 2015 WL 4692571, at *7 (N.D. Cal. Aug. 6, 2015); Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962, 981 (C.D. Cal. 2014). Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 23 of 25 Page ID #:118 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 14 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) there exists between the parties a valid express contract covering the same subject matter.” Phillips v. P.F. Chang’s China Bistro, Inc., No. 5:15-CV-0344-RMW, 2015 WL 4694049, at *9 (N.D. Cal. Aug. 6, 2015). Thus, “[w]hen parties have an actual contract covering a subject, a court cannot-not even under the guise of equity jurisprudence-substitute the court’s own concepts of fairness regarding that subject in place of the parties’ own contract.” Cal.Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal., Inc., 114 Cal. Rptr. 2d 109, 126 (Cal. Ct. App. 2001). Here, the written warranty that accompanied Plaintiffs’ oven is a valid contract that establishes the parties’ rights and obligations with respect to the subject matter of the unjust-enrichment claim-namely the Plaintiffs’ oven. (See Haines Decl., Ex. 1.) Because Plaintiffs allege no facts that support a plausible inference to the contrary, the Court should dismiss their unjust enrichment claim.13 See, e.g., Friedman v. Guthy- Renker LLC, No. 2:14-CV-06009-ODW (AGRx), 2015 WL 857800, at *8 (C.D. Cal. Feb. 27, 2015) (dismissing quasi-contract claim even though plaintiffs’ complaint did not assert a contract claim because it was clear that a contract existed between the parties); Sater v. Chrysler Grp. LLC, No. EDCV 14-00700-VAP (DTBx), 2015 WL 736273, at *14 (C.D. Cal. Feb. 20, 2015) (dismissing unjust enrichment claim without leave to amend where case was “about the terms of a contract,” including “the scope of [the manufacturer’s] alleged warranties”). CONCLUSION For all these reasons, the Court should grant Whirlpool’s motion and dismiss Plaintiffs’ Complaint in its entirety. 13 Plaintiffs do not avoid this result by omitting from their Complaint any reference to the written warranty. See supra p. 4, n3. Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 24 of 25 Page ID #:119 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 15 DEFENDANT WHIRLPOOL CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) Dated: January 9, 2017 WHEELER TRIGG O’DONNELL LLP By: /s/ Andrew M. Unthank Andrew M. Unthank (admitted pro hac vice) Ashley R. Fickel (237111) Laura J. McNabb (admitted pro hac vice) Attorneys for Defendant, Defendant Whirlpool Corporation Case 8:16-cv-01704-CJC-DFM Document 17 Filed 01/09/17 Page 25 of 25 Page ID #:120 Page 16 DECLARATION OF PAULA A. HAINES IN SUPPORT OF DEFENDANTWHIRLPOOL CORPORATION’S MOTION TO DISMISS CLASS ACTION COMPLAINT Case 8:16-cv-01704-CJC-DFM Document 17-1 Filed 01/09/17 Page 1 of 4 Page ID #:121 pro hac vice pro hac vice) Page 17 Case 8:16-cv-01704-CJC-DFM Document 17-1 Filed 01/09/17 Page 2 of 4 Page ID #:122 Page 18 Case 8:16-cv-01704-CJC-DFM Document 17-1 Filed 01/09/17 Page 3 of 4 Page ID #:123 Page 19 DECLARATION OF PAULA A. HAINES IN SUPPORT OF DEFENDANT WHIRLPOOL CORPORATION'S MOTION TO DISMISS CLASS ACTION COMPLAINT, CASE NO. 8:16-cv-1704 CJC (DFMx) Case 8:16-cv-01704-CJC-DFM Document 17-1 Filed 01/09/17 Page 4 of 4 Page ID #:124 Page 20 Case 8:16-cv-01704-CJC-DFM Document 17-2 Filed 01/09/17 Page 1 of 3 Page ID #:125 BUILT-IN ELECTRIC SINGLE AND DOUBLE OVENS Use & Care Guide For questions about features, operation/performance, parts accessories or service, call: 1-800-422-1230 In Canada, for assistance, installation and service, call: 1-800-807-6777 or visit our website at... www.kitchenaid.com or www.kitchenaid.ca FOURS ÉLECTRIQUES ENCASTRÉS - SIMPLE ET DOUBLE Guide d’utilisation et d’entretien Au Canada, pour assistance, installation ou service, composer le 1-800-807-6777 ou visiter notre site Web au www.kitchenaid.ca Table of Contents/Table des matières.............................................................................2 Models/Modèles KEBS109, KEBS207, KEBS209, KEBK101, KEBK206 W10354193A Page 21 Case 8:16-cv-01704-CJC-DFM Document 17-2 Filed 01/09/17 Page 2 of 3 Page ID #:126 21 KITCHENAID® BUILT-IN OVEN & MICROWAVE WARRANTY LIMITED WARRANTY For one year from the date of purchase, when this major appliance is operated and maintained according to instructions attached to or furnished with the product, KitchenAid brand of Whirlpool Corporation or Whirlpool Canada LP (hereafter “KitchenAid”) will pay for Factory Specified Parts and repair labor to correct defects in materials or workmanship. Service must be provided by a KitchenAid designated service company. This limited warranty is valid only in the United States or Canada and applies only when the major appliance is used in the country in which it was purchased. Outside the 50 United States and Canada, this limited warranty does not apply. Proof of original purchase date is required to obtain service under this limited warranty. SECOND THROUGH FIFTH YEAR LIMITED WARRANTY ON CERTAIN COMPONENT PARTS In the second through fifth years from the date of purchase, when this appliance is operated and maintained according to instructions attached to or furnished with the product, KitchenAid will pay for Factory Specified Parts for the following components if defective in materials or workmanship: SECOND THROUGH TENTH YEAR LIMITED WARRANTY On microwave ovens only, in the second through tenth years from date of purchase, when this major appliance is operated and maintained according to instructions attached to or furnished with the product, KitchenAid will pay for Factory Specified Parts for the stainless steel oven cavity/inner door if the part rusts through due to defects in materials or workmanship. ITEMS EXCLUDED FROM WARRANTY This limited warranty does not cover: 1. Service calls to correct the installation of your major appliance, to instruct you on how to use your major appliance, to replace or repair house fuses, or to correct house wiring or plumbing. 2. Service calls to repair or replace appliance light bulbs, air filters or water filters. Consumable parts are excluded from warranty coverage. 3. Repairs when your major appliance is used for other than normal, single-family household use or when it is used in a manner that is contrary to published user or operator instructions and/or installation instructions. 4. Damage resulting from accident, alteration, misuse, abuse, fire, flood, acts of God, improper installation, installation not in accordance with electrical or plumbing codes, or use of consumables or cleaning products not approved by KitchenAid. 5. Cosmetic damage, including scratches, dents, chips or other damage to the finish of your major appliance, unless such damage results from defects in materials or workmanship and is reported to KitchenAid within 30 days from the date of purchase. 6. Costs associated with the removal from your home of your major appliance for repairs. This major appliance is designed to be repaired in the home and only in-home service is covered by this warranty. 7. Repairs to parts or systems resulting from unauthorized modifications made to the appliance. 8. Expenses for travel and transportation for product service if your major appliance is located in a remote area where service by an authorized KitchenAid servicer is not available. 9. The removal and reinstallation of your major appliance if it is installed in an inaccessible location or is not installed in accordance with published installation instructions. 10. Major appliances with original model/serial numbers that have been removed, altered or cannot be easily determined. This warranty is void if the factory applied serial number has been altered or removed from your major appliance. The cost of repair or replacement under these excluded circumstances shall be borne by the customer. DISCLAIMER OF IMPLIED WARRANTIES; LIMITATION OF REMEDIES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY SHALL BE PRODUCT REPAIR AS PROVIDED HEREIN. IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED TO ONE YEAR OR THE SHORTEST PERIOD ALLOWED BY LAW. KITCHENAID SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS, SO THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR PROVINCE TO PROVINCE. If outside the 50 United States and Canada, contact your authorized KitchenAid dealer to determine if another warranty applies. If you need service, first see the “Troubleshooting” section of the Use & Care Guide. After checking “Troubleshooting,” you may find additional help by checking the “Assistance or Service” section or by calling KitchenAid. In the U.S.A., call 1-800-422-1230. In Canada, call 1-800-807-6777. 9/07 ■ Electric element ■ Solid state touch control system parts Page 22 Case 8:16-cv-01704-CJC-DFM Document 17-2 Filed 01/09/17 Page 3 of 3 Page ID #:127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER GRANTING DEFENDANT WHIRLPOOL CORPORATION’S MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) Andrew M. Unthank (admitted pro hac vice) Email: unthank@wtotrial.com Laura J. McNabb (admitted pro hac vice) Email: mcnabb@wtotrial.com WHEELER TRIGG O’DONNELL LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-5647 Telephone: 303.244.1800 Facsimile: 303.244.1879 Ashley R. Fickel (237111) Email: afickel@dykema.com DYKEMA GOSSETT PLLC 333 South Grand Avenue, Suite 2100 Los Angeles, California 90071 Telephone: 213.457.1758 Facsimile: 213.457.1850 Attorneys for Defendant Whirlpool Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA REGINALD WHITLEY and JOANN WHITLEY, individually, and on behalf of a class of similarly situated individuals, Plaintiffs, vs. WHIRLPOOL CORPORATION, a Delaware corporation Defendant. Case No.: 8:16-cv-1704 CJC (DFM) [PROPOSED] ORDER GRANTING DEFENDANT WHIRLPOOL CORPORATION’S MOTION TO DISMISS CLASS ACTION COMPLAINT Hearing Date: March 20, 2017 Time: 1:30 PM Ctrm: 9B Complaint served: November 18, 2016 Trial date: Not yet set Case 8:16-cv-01704-CJC-DFM Document 17-3 Filed 01/09/17 Page 1 of 2 Page ID #:128 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 [PROPOSED] ORDER GRANTING DEFENDANT WHIRLPOOL CORPORATION’S MOTION TO DISMISS CLASS ACTION COMPLAINT - CASE NO. 8:16-cv-1704 CJC (DFMx) The Motion to Dismiss filed by Defendant Whirlpool Corporation (hereinafter “Whirlpool”) was heard on March 20, 2017 at 1:30 p.m. by this Court, the Honorable Cormac J. Carney presiding. Having considered all papers filed in support of an in opposition to the Motion, oral arguments of counsel, and all other pleadings and papers on file herein, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: 1. Whirlpool’s Motion to Dismiss Plaintiffs Reginald and Joann Whitley’s Complaint is GRANTED. 2. All claims for relief against Whirlpool are hereby DISMISSED. Plaintiffs’ implied-warranty and unjust-enrichment claims (Counts 3-5) are dismissed with prejudice and without leave to amend. IT IS SO ORDERED. Dated: _________________ ______________________________ The Honorable Cormac J. Carney Case 8:16-cv-01704-CJC-DFM Document 17-3 Filed 01/09/17 Page 2 of 2 Page ID #:129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 CERTIFICATE OF SERVICE Andrew M. Unthank (admitted pro hac vice) Email: unthank@wtotrial.com Laura J. McNabb (admitted pro hac vice) Email: mcnabb@wtotrial.com WHEELER TRIGG O’DONNELL LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-5647 Telephone: 303.244.1800 Facsimile: 303.244.1879 Ashley R. Fickel (237111) Email: afickel@dykema.com DYKEMA GOSSETT PLLC 333 South Grand Avenue, Suite 2100 Los Angeles, California 90071 Telephone: 213.457.1758 Facsimile: 213-457-1850 Attorneys for Defendant Whirlpool Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA REGINALD WHITLEY and JOANN WHITLEY, individually, and on behalf of a class of similarly situated individuals, Plaintiffs, vs. WHIRLPOOL CORPORATION, a Delaware corporation Defendant. Case No.: 8:16-cv-1704 CJC (DFM) Assigned to the Hon. Cormac J. Carney CERTIFICATE OF SERVICE Hearing Date: March 20, 2017 Time: 1:30 PM Ctrm: 9B Complaint served: November 18, 2016 Trial date: Not yet set Case 8:16-cv-01704-CJC-DFM Document 17-4 Filed 01/09/17 Page 1 of 2 Page ID #:130 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 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January 9, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record. /s/ Andrew M. Unthank Andrew M. Unthank (admitted pro hac vice) Case 8:16-cv-01704-CJC-DFM Document 17-4 Filed 01/09/17 Page 2 of 2 Page ID #:131