Tsvetelin Tsonev v. Kia Motors America, Inc.NOTICE OF MOTION AND MOTION to Dismiss and/or Strike Allegations in the Amended ComplaintC.D. Cal.September 14, 2016 NOTICE OF MOT. AND MOT. TO DISMISS AND/OR STRIKE AM. COMPL., 8:16-CV-01020-CJC-DFM 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 CARLOS M. LAZATIN (S.B. #229650) clazatin@omm.com MICHAEL REYNOLDS (S.B. #270962) mreynolds@omm.com JASON ORR (S.B. #301764) jorr@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant KIA MOTORS AMERICA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION TSVETELIN TSONEV, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. KIA MOTORS AMERICA, INC., Defendant. Case No. 8:16-cv-01020-CJC-DFM CLASS ACTION DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE ALLEGATIONS IN THE AMENDED COMPLAINT [Concurrently filed/lodged with Memorandum of Points and Authorities; Appendix of Variations in State Laws; and [Proposed] Order] Hearing Date: November 7, 2016 Time: 1:30 p.m. Courtroom: 9B Judge: Hon. Cormac J. Carney Case 8:16-cv-01020-CJC-DFM Document 22 Filed 09/14/16 Page 1 of 3 Page ID #:376 1 NOTICE OF MOT. AND MOT. TO DISMISS AND/OR STRIKE AM. COMPL., 8:16-CV-01020-CJC-DFM 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 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on November 7, 2016, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 9B of the above- captioned Court, located at 411 West Fourth Street, Santa Ana, California 92701, Defendant Kia Motors America, Inc. (“Kia”) will move this Court for an order dismissing and/or striking Plaintiff’s Amended Class Action Complaint, Docket No. 21, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f). Specifically, Kia seeks an order: (1) dismissing Plaintiff’s claims based on Kia’s New Vehicle Limited Warranty (Counts I, II, III, and IV) because that warranty unambiguously excludes from coverage the types of damage that Plaintiff is alleging; (2) dismissing Plaintiff’s claim for declaratory relief (Count I) because it is duplicative of and subsumed by his express warranty claims; (3) dismissing Plaintiff’s claim under the Magnuson-Moss Warranty Act (Count III) because he never exhausted the required informal dispute resolution procedure as required by his warranty and under the Magnuson-Moss Act; (4) dismissing Plaintiff’s implied warranty claim (Count V) because he is not in privity with Kia as required under Illinois law, because he does not allege his car was unmerchantable or unfit for driving, and because Kia’s express warranty displaces any purported coverage for rodent damage under an implied warranty; (5) dismissing Plaintiff’s claim under the Illinois Consumer Fraud Act and Uniform Deceptive Trade Practices Act (Count VI) because he has not identified any actionable misrepresentation by Kia, and does not allege any facts that would show Kia knew of a defect but fraudulently omitted information about that defect; and (6) dismissing and/or striking Plaintiff’s nationwide class action allegations in paragraph 67 of the Amended Complaint because a nationwide class cannot be certified under California choice-of-law rules. Case 8:16-cv-01020-CJC-DFM Document 22 Filed 09/14/16 Page 2 of 3 Page ID #:377 2 NOTICE OF MOT. AND MOT. TO DISMISS AND/OR STRIKE AM. COMPL., 8:16-CV-01020-CJC-DFM 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 This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on September 7, 2016. This Motion is based on this Notice of Motion and Motion, the concurrently filed Memorandum of Points and Authorities and Appendix of Variations in State Laws, and all other pleadings, papers, and evidence on file in this matter, any matters properly subject to judicial notice, and such other matters or argument as may be provided on or before the hearing hereof. Dated: September 14, 2016 CARLOS M. LAZATIN MICHAEL REYNOLDS JASON ORR O’MELVENY & MYERS LLP By: /s/ Carlos M. Lazatin Carlos M. Lazatin Attorneys for Defendant KIA MOTORS AMERICA, INC. Case 8:16-cv-01020-CJC-DFM Document 22 Filed 09/14/16 Page 3 of 3 Page ID #:378 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 CARLOS M. LAZATIN (S.B. #229650) clazatin@omm.com MICHAEL REYNOLDS (S.B. #270962) mreynolds@omm.com JASON ORR (S.B. #301764) jorr@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant KIA MOTORS AMERICA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION TSVETELIN TSONEV, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. KIA MOTORS AMERICA, INC., Defendant. Case No. 8:16-cv-01020-CJC-DFM CLASS ACTION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE ALLEGATIONS IN THE AMENDED COMPLAINT [Concurrently filed/lodged with Appendix of Variations in State Laws; and [Proposed] Order] Hearing Date: November 7, 2016 Time: 1:30 p.m. Courtroom: 9B Judge: Hon. Cormac J. Carney Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 1 of 34 Page ID #:379 TABLE OF CONTENTS Page i MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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. INTRODUCTION ......................................................................................... 1 II. PLAINTIFF’S ALLEGATIONS .................................................................. 2 III. LEGAL STANDARDS ................................................................................. 4 IV. KIA’S EXPRESS WARRANTY EXPLICITLY DOES NOT COVER PLAINTIFF’S ALLEGED DAMAGES ........................................ 5 A. Design Choices Are Not Covered Under Kia’s Warranty .................... 6 B. Kia’s Warranty Does Not Cover Damage from Environmental Factors Outside Its Control, Such as Rodent Damage .......................... 8 V. PLAINTIFF’S CLAIM UNDER THE DECLARATORY JUDGMENT ACT IS DUPLICATIVE AND SHOULD BE DISMISSED ................................................................................................ 10 VI. THE MAGNUSON-MOSS CLAIM SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS NOT COMPLIED WITH THE REQUIRED INFORMAL DISPUTE RESOLUTION PROCESS ............ 11 VII. PLAINTIFF’S IMPLIED WARRANTY CLAIM MUST FAIL ................ 12 A. Plaintiff Is Not in Privity with Kia ...................................................... 12 B. No Implied Warranty Covers Damage from Rodents ........................ 13 C. The Implied Warranty Cannot Override the Express Warranty ......... 15 VIII. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE ILLINOIS CONSUMER PROTECTION STATUTES ................................................ 15 A. The Complaint Fails to Identify Any Actionable Misrepresentation ................................................................................ 16 B. Plaintiff Cannot State a Fraudulent Omission Claim Because There Are No Alleged Facts Showing Kia Knew of the Defect ........ 17 IX. PLAINTIFF’S NATIONWIDE CLASS ALLEGATIONS SHOULD BE STRUCK ............................................................................................... 20 X. CONCLUSION ........................................................................................... 24 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 2 of 34 Page ID #:380 TABLE OF AUTHORITIES Page(s) ii MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 5 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1988) ................................................................................. 5 Baughn v. Honda Motor Co., 727 P.2d 655 (Wash. 1986) ................................................................................. 23 Bedrosian v. Tenet Healthcare Corp., 208 F.3d 220, 2000 U.S. App. LEXIS 2840 (9th Cir. Feb. 23, 2000) .................. 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................. 4 Belle v. Chrysler Group, LLC, No. SACV 12-00936 JVS (RNBx), 2013 WL 949484 (C.D. Cal. Jan. 29, 2013) ........................................................ 20 Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220 (C.D. Cal. 2011) ............................................................... 19 Cipollone v. Liggett Grp., Inc., 893 F.2d (3d Cir. 1990) ....................................................................................... 23 Connick v. Suzuki Motor Co., Ltd., 675 N.E.2d 584 (Ill. 1996) ................................................................................... 12 Consolidated Papers, Inc. v. Dorr-Oliver, Inc., 451 N.W.2d 456 (Wis. Ct. App. 1989) ................................................................ 15 Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736 (Colo. 1991) .................................................................................. 23 Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990 (7th Cir. 2004) ............................................................................... 17 Darne v. Ford Motor Co., No. 13 C 03594, 2015 U.S. Dist. LEXIS 169752 (N.D. Ill. Dec. 18, 2015) ....... 12 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 3 of 34 Page ID #:381 TABLE OF AUTHORITIES (continued) Page(s) iii MEMO. ISO MOT. TO DISMISS AND/OR STRIKE FIRST AMENDED COMPLAINT, SACV15-00239 CJC (RNBX) 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 Davison v. Kia Motors Am., Inc., 2015 WL 3970502 (C.D. Cal. June 29, 2015) ..................................................... 22 Evitts v. DaimlerChrysler Motors Corp., 834 N.E.2d 942 (Ill. App. 2005) .......................................................................... 17 Falco v. Nissan N. Am., Inc., No. 13-cv-00686 DDP, 2013 WL 5575065 (C.D. Cal. Oct. 10, 2013) ............... 19 Falk v. General Motors Corp., 496 F. Supp. 2d 1088 (N.D. Cal. July 3, 2007) ................................................... 20 Fantasy, Inc. v. Fogerty, 984 F.2d 1524 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994) .............................................................................................. 5 Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54 Cal. App. 4th 357 (Cal. Ct. App. 1997).......................................................... 22 Fischer v. Mead Johnson Labs., 341 N.Y.S.2d 257 (N.Y. App. Div. 1973) ........................................................... 23 Fisher v. Honda N. Am., Inc., No. 13-cv-09285 JAK, 2014 WL 2808188 (C.D. Cal. June 12, 2014) ............... 18 Fortune View Condo. Ass’n v. Fortune Star Dev. Co., 90 P.3d 1062 (Wash. 2004) ................................................................................. 22 Frenzel v. Aliphcom, 76 F. Supp. 3d 999 (N.D. Cal. 2014) ................................................................... 22 Frezza v. Google, Inc., No. 5:12-cv-00237, 2013 U.S. Dist. LEXIS 57462 (N.D. Cal. Apr. 22, 2013) ................................................................................................ 21, 22 FT Travel-N.Y., LLC v. Your Travel Ctr., Inc., 112 F. Supp. 3d 1063 (C.D. Cal. 2015) ................................................................. 5 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 4 of 34 Page ID #:382 TABLE OF AUTHORITIES (continued) Page(s) iv MEMO. ISO MOT. TO DISMISS AND/OR STRIKE FIRST AMENDED COMPLAINT, SACV15-00239 CJC (RNBX) 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 Gertz v. Toyota Motor Corp., No. 10-cv-1089 PSG, 2011 U.S. Dist. LEXIS 94183 (C.D. Cal. Aug. 22, 2011), aff’d sub nom. Troup v. Toyota Motor Corp., 545 Fed. App’x ............................. 7 Glenn v. Hyundai Motor Am., 2016 WL 3621280 (C.D. Cal. June 24, 2016) ..................................................... 22 Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392 (7th Cir. 2011) ............................................................................... 16 Grodzitsky v. Am. Honda Motor Co., No. 2:12-cv-1142-SVW-PLA, 2013 U.S. Dist. LEXIS 82746 (C.D. Cal. June 12, 2013) .............................................................................................. 15 Hackett v. BMW of N. Am., LLC, No. 10 C 7731, 2011 U.S. Dist. LEXIS 71063 (N.D. Ill. June 30, 2011) ........... 12 Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929 (C.D. Cal. 2012) ................................................................. 24 Lee v. Toyota Motor Sales, U.S.A., Inc., 922 F. Supp. 2d 962 (C.D. Cal. 2014) ........................................................... 13, 14 Lutz Farms v. Asgrow Seed Co., 948 F.2d 638 (10th Cir. 1991) ............................................................................. 23 MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087 (N.D. Cal. 2014)........................................................... 19, 20 Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 U.S. Dist. LEXIS 2140 (N.D. Cal. Jan. 8, 2015) ......................................................................................................... 14 Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ......................................................................... 21, 24 McCann v. Foster Wheeler LLC, 48 Cal. 4th 68 (2010)) ......................................................................................... 23 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 5 of 34 Page ID #:383 TABLE OF AUTHORITIES (continued) Page(s) v MEMO. ISO MOT. TO DISMISS AND/OR STRIKE FIRST AMENDED COMPLAINT, SACV15-00239 CJC (RNBX) 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 McLaughlin v. LVNV Funding, LLC, 971 F. Supp. 2d 796 (N.D. Ill. 2013) ............................................................. 16, 17 Mui Ho v. Toyota Motor Corp., 931 F. Supp. 2d 987 (N.D. Cal. 2013)................................................................. 19 In re MyFord Touch Consumer Litig., 46 F. Supp. 3d 936 (N.D. Cal. 2014) ................................................................... 11 Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964 (N.D. Cal. 2008)................................................................. 19 Parenteau v. GM, LLC, No. 14-cv-04961-RGK, 2015 U.S. Dist. LEXIS 31184 (C.D. Cal. Mar. 5, 2015) ................................................................................................. 18, 19 Parkinson v. Hyundai Motor Am., 258 F.R.D. 580 (C.D. Cal. 2008) ........................................................................ 11 Pope v. TT of Lake Norman, LLC, 505 F. Supp. 2d 309 (W.D.N.C. 2007) .................................................................. 9 Powers v. Am. Honda Motor Co., 79 P.3d 154 (Idaho 2003) .................................................................................... 13 Redfield v. Mead, Johnson & Co., 512 P.2d 776 (Or. 1973) ...................................................................................... 23 Rikos v. P&G, No. 1:11-cv-226, 2012 U.S. Dist. LEXIS 25104 (S.D. Ohio Feb. 28, 2012) .......................................................................................... 22, 23, 24 Route v. Mead Johnson Nutrition Co., No. 12-cv-7350-GW, 2013 U.S. Dist. LEXIS 35069 (C.D. Cal. Feb. 21, 2013) ...................................................................................................... 22 San Diego Unified Port Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 3:15-cv-1401-BEN-MDD, 2016 U.S. Dist. LEXIS 88362 (S.D. Cal. July 6, 2016) ................................................................................................... 5 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 6 of 34 Page ID #:384 TABLE OF AUTHORITIES (continued) Page(s) vi MEMO. ISO MOT. TO DISMISS AND/OR STRIKE FIRST AMENDED COMPLAINT, SACV15-00239 CJC (RNBX) 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 Scaringe v. Holstein, N.Y.S.2d 903 (N.Y. App. Div. 1984) .................................................................. 23 State v. Am. TV & Appliance of Madison, Inc., 430 N.W.2d 709 (Wis. 1988) .............................................................................. 17 Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128 (N.D. Cal. 2010)............................................................... 23 StreamCast Networks, Inc. v. IBIS LLC, No. 05-cv-04239, 2006 U.S. Dist. LEXIS 97607 (C.D. Cal. May 3, 2006) ....... 10 Szajna v. Gen. Motors Corp., 503 N.E.2d 760 (Ill. 1986) ................................................................................... 12 T.W.M. v. Am. Med. Sys., 886 F. Supp. 842 (N.D. Fla. 1995) ...................................................................... 22 Taragan v. Nissan N. Am., Inc., No. 09-cv-3660 SBA, 2013 WL 3157918 (N.D. Cal. June 20, 2013) ................ 18 Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123 (N.D. Cal. 2010)............................................................... 13 Tokuhisa v. Cutter Mgmt. Co., 223 P.3d 246 (Haw. Ct. App. 2009) ...................................................................... 9 Troup v. Toyota Motor Corp., 545 Fed. App’x 668 (9th Cir. 2013) ................................................................ 7, 13 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................. 16 Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516 (7th Cir. 2003) ............................................................................... 12 Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135 (1986) ............................................................................... 23 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 7 of 34 Page ID #:385 TABLE OF AUTHORITIES (continued) Page(s) vii MEMO. ISO MOT. TO DISMISS AND/OR STRIKE FIRST AMENDED COMPLAINT, SACV15-00239 CJC (RNBX) 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 Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 2012) ....................................................................... 17, 19 Wozniak v. Align Tech., Inc., 850 F. Supp. 2d 1029 (N.D. Cal. 2012)............................................................... 17 Zamora v. Solar, No. 2:16-cv-01260, 2016 U.S. Dist. LEXIS 83256 (C.D. June 27, 2016) .......... 10 Statutes 15 U.S.C. § 2310(a)(3) ............................................................................................. 11 810 Ill. Comp. Stat. 5/2-314(2)(c) ............................................................................ 13 810 Ill. Comp. Stat. 5/2-317 ..................................................................................... 15 Cal. Ins. Code § 22 ..................................................................................................... 9 Other Authorities How to Keep Mice Out of Cars, Ameriprise Auto & Home Ins., https://www.ameriprise.com/auto-home-insurance/learning- center/insurance-tips-for-drivers/bumper-to-bumper-car-care- tips/how-to-keep-mice-out-of-cars.asp (last accessed Sept. 14, 2016) ................................................................................ 9 If a Squirrel Chews Up Wires in Your Car, Are You Protected?, Allstate (Mar. 2014), https://www.allstate.com/tools-and-resources/car- insurance/squirrel-chews-wires.aspx; .................................................................... 9 Penny Gusner, Is an Animal Chewing Your Car’s Wiring Covered by Car Insurance? (Jan. 14, 2014), http://www.carinsurance.com/kb/is-an-animal-chewing-your-cars- wiring-covered-by-car-insurance.aspx .................................................................. 9 Rules Fed. R. App. P. 32.1(a) ............................................................................................... 7 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 8 of 34 Page ID #:386 TABLE OF AUTHORITIES (continued) Page(s) viii MEMO. ISO MOT. TO DISMISS AND/OR STRIKE FIRST AMENDED COMPLAINT, SACV15-00239 CJC (RNBX) 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 Fed. R. Civ. P. 9(b) ............................................................................................. 16, 18 Fed. R. Civ. P. 12(f) .................................................................................................... 5 Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 9 of 34 Page ID #:387 1 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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. INTRODUCTION Plaintiff Tsvetelin Tsonev appears to have a rodent problem. He alleges that on three occasions in the winter of 2015–2016, rodents crawled into the warm engine compartment of his 2015 Kia Soul and chewed wires and other components. But rather than employ the services of an exterminator or pest control specialist, Mr. Tsonev brought this class action lawsuit against Kia, alleging Kia committed fraud and breach of warranty by selling him a car that supposedly attracts vermin. He alleges that certain wires, hoses, and other components in his Kia Soul are made of soy-based materials that he claims attract animals that “eat” these components. Asserting that nearly the entire line of Kia vehicles suffers from this “defect,” Plaintiff brings one consumer protection claim, one implied warranty claim, and four claims for breach of express warranty. All of Plaintiff’s claims are meritless and fail on the face of his complaint. First, Plaintiff’s express warranty claims fail because the New Vehicle Limited Warranty—which he attached to his Amended Complaint and on which all his express warranty claims are based—unambiguously excludes from coverage the very types of damage that Plaintiff is alleging. The warranty does not cover damage that results from Kia’s choices in design or materials—such as the choice to use soy-based materials in engine components. And the warranty does not cover damage from environmental factors beyond Kia’s control—like vermin infiltrating the engine compartment of Plaintiff’s car. Plaintiff’s alleged damages are the appropriate subject of an insurance policy, but they are not covered under his warranty. Because the clear and unambiguous terms of Kia’s warranty resolve these claims, they should be dismissed. Second, Plaintiff’s claim for declaratory relief should be dismissed because it is entirely duplicative of and subsumed by his express warranty claims. Third, Plaintiff’s claim under the Magnuson-Moss Warranty Act (“MMWA”) should be dismissed because he never exhausted the required informal Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 10 of 34 Page ID #:388 2 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 dispute resolution procedure. Fourth, Plaintiff fails to plead a breach of the implied warranty of merchantability for three reasons: (1) he cannot bring an implied warranty claim against Kia because he is not in privity with Kia; (2) Plaintiff does not allege his car was unmerchantable or unfit for driving—the implied warranty of merchantability does not guarantee a rodent-proof car—and (3) under the UCC, the implied warranty must be read consistently with the express warranty, and so cannot serve as a basis for claims that are explicitly excluded from the written warranty. Fifth, Plaintiff has not stated a valid fraud claim under either the Illinois Consumer Fraud Act or the Uniform Deceptive Trade Practices Act. He has not identified a single actionable misrepresentation by Kia, and any fraudulent omission-based claim must fail because Plaintiff does not allege any facts that would show Kia knew of the supposed defect at the time Plaintiff leased the vehicle. He can only point to a handful of anecdotes and consumer complaints that, as a matter of law, cannot impute knowledge to Kia. Finally, Plaintiff’s nationwide class allegations should be dismissed or struck because, under California choice-of-law principles, Plaintiff cannot bring nationwide class claims for breach of warranty. II. PLAINTIFF’S ALLEGATIONS Plaintiff alleges he leased a 2015 Kia Soul in April 2015 from a Kia dealership in Naperville, a suburb of Chicago, Illinois. (Am. Compl. ¶¶ 17, 39.) He alleges that prior to entering into the lease, he “reviewed the Maroney sticker on the window” of the car, he test drove it, inspected its interior, and “reviewed Kia vehicle sales brochures.” (Id. ¶ 39.) He does not, however, identify any specific representations made by Kia that he saw or relied on. Plaintiff claims that “[a]t all relevant times, he . . . parked his [Kia Soul] in a parking garage at his apartment in Elmhurst, Illinois,” another suburb just outside of Chicago. (Id.) Over the course of four winter months in Elmhurst, from Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 11 of 34 Page ID #:389 3 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 December 2015 to March 2016, Plaintiff alleges his Kia Soul was repeatedly damaged by rodents that had crawled into the warm engine compartment of his car, presumably while it was parked in his garage. (Id. ¶¶ 41–51.) He says that in December 2015, he “noticed that the check engine light was lit”; he took the car to his dealer, who told him that “rodents had eaten the hood insulation, wiring assembly, and wiring harness, as well as the positive and ground cables.” (Id. ¶ 41.) Plaintiff alleges that, while his Kia Soul was being repaired, the dealer provided him with a loaner vehicle—and the loaner vehicle experienced similar rodent damage. (Id. ¶ 42.) He then claims that “less than two weeks after receiving” his car back from the dealer, he discovered the same type of “rodent damage” to his engine’s main harness and wiring assembly. (Id. ¶¶ 44, 46.) He had the car repaired a second time by the dealer, but then four weeks later the air bag sensor light in Plaintiff’s Kia Soul illuminated, apparently, he claims, because of “gnawed and damaged wires.” (Id. ¶¶ 50–51.) Plaintiff never alleges that he took steps to control the rodent infestation that repeatedly damaged his car (and one of the loaner vehicles provided by his Kia dealer). And he never says he made any effort to protect his car from rodent damage—even though he admits there are ways to prevent such damage. (See id. ¶¶ 30, 37.) He alleges only that he repeatedly asked his dealer to cover these repairs, which he insists “should have been covered by Kia’s warranty.” (Id. ¶¶ 41, 47–48, 50, 52–53, 55.) He also alleges that he unsuccessfully attempted to break his lease on the grounds that Kia would not cover his repairs under warranty, or repair his car in such a way that rodents would not damage it. (Id. ¶¶ 48–49.) Plaintiff alleges his car is “defective” because it contains commonly used industrial biocomposites that include some amount of processed soy material. (Id. ¶ 5.) Without explaining how, he claims these “soy-based materials . . . attract animals that chew through the wires and engine-related components.” (Id.) He claims this wire damage can affect the operation of certain safety devices, such as Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 12 of 34 Page ID #:390 4 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 air bags, that may “fail to function during normal use . . . once the soy-based material is chewed.” (Id. ¶¶ 24, 28.) Consequently, Plaintiff alleges, his Kia Soul is “defective in, at least, design, material, and workmanship.” (Id. ¶ 28.) Plaintiff asserts that any rodent damage resulting from this supposed “defect” is covered under Kia’s New Vehicle Limited Warranty because “[t]he Warranty provides for the repair/replacement of factory installed parts if they ‘fail to function properly during normal use.’” (Id. ¶ 40; see also id. Ex. A.) Plaintiff claims Kia refused to pay for his repairs in breach of that warranty. (Id. ¶¶ 83, 100, 110.) He also claims that the defect renders his car unmerchantable, in breach of the implied warranty of merchantability. (Id. ¶¶ 119–30.) Further, he claims Kia knew about this defect but fraudulently withheld this information and misrepresented its vehicles’ characteristics to consumers in violation of the Illinois Consumer Fraud and Uniform Deceptive Trade Practices Acts. (Id. ¶¶ 131–50.) Plaintiff brings this action on behalf of a nationwide class consisting of “All individuals or entities in the United States who leased or purchased, not for resale, Model year 2012–2015 Class Vehicles,” and a sub-class of individuals and entities who leased or purchased those vehicles in the state of Illinois. (Id. ¶ 67.) Plaintiff’s “Class Vehicles” include every Kia Soul, Sorento, Sedona, Sportage, Forte, Cadenza, Optima, and Rio vehicle. (Id. ¶ 1.) Plaintiff asserts three causes of action on behalf of the nationwide class: (1) a claim under the Declaratory Judgment Act, (2) breach of express warranty, and (3) violation of the Magnuson-Moss Warranty Act. He asserts three more claims on behalf of the Illinois class: (4) breach of express warranty, (5) breach of implied warranty, and (6) violation of the Illinois Consumer Fraud and Uniform Deceptive Trade Practices Acts. III. LEGAL STANDARDS Under Federal Rule of Civil Procedure 12(b)(6), the Court should dismiss a complaint that does not set forth facts that establish the elements of a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 13 of 34 Page ID #:391 5 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 claim should be dismissed where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept as true all the allegations contained in the complaint, but it need not accept conclusory allegations, unreasonable inferences, or legal conclusions set out in the form of factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Under Rule 12(f), the Court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). IV. KIA’S EXPRESS WARRANTY EXPLICITLY DOES NOT COVER PLAINTIFF’S ALLEGED DAMAGES Plaintiff’s first four causes of action—for declaratory relief, breach of express warranty (both on a nationwide and Illinois class basis), and under the MMWA—should all be dismissed because the warranty on which all four claims are based expressly excludes coverage for the defect that Plaintiff has alleged. “Resolution of contractual claims on a motion to dismiss is proper if the terms of the contract are unambiguous.” Bedrosian v. Tenet Healthcare Corp., 208 F.3d 220, 2000 U.S. App. LEXIS 2840, at *2–3 (9th Cir. Feb. 23, 2000) (rejecting plaintiff’s interpretation of contract based on clear meaning of two terms operating in conjunction); see also San Diego Unified Port Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 3:15-cv-1401-BEN-MDD, 2016 U.S. Dist. LEXIS 88362, at *13 (S.D. Cal. July 6, 2016) (“When the contract language is not ambiguous, a court can resolve a motion to dismiss.”); FT Travel-N.Y., LLC v. Your Travel Ctr., Inc., 112 F. Supp. 3d 1063, 1091 n.134 (C.D. Cal. 2015) (Morrow, J.) (“[W]here a Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 14 of 34 Page ID #:392 6 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 contract’s language is clear and unambiguous, a court may dismiss a breach of contract claim on a Rule 12(b)(6) motion to dismiss.”). Plaintiff’s express warranty claims can be resolved as a matter of law on the clear and unambiguous terms of Kia’s warranty. The warranty on which Plaintiff bases his first four causes of action is Kia’s New Vehicle Limited Warranty. (Am. Compl. ¶ 40; id. Ex. A at 4–13.) Ignoring all language to the contrary, Plaintiff asserts his rodent damage is covered under the warranty because it generally covers factory-installed parts that “fail to function properly during normal use.” (Id. ¶ 81; id. Ex. A at 8.) But in a section entitled “What is Not Covered,” the warranty unambiguously excludes the very types of warranty claims Plaintiff makes here: (1) “Manufacturer Design Choices . . . including the materials chosen for parts and components,” and (2) “Damage due to Factors Beyond the Manufacturer’s Control,” including “incidents that damage your Kia vehicle” and “[d]amage or corrosion from the environment.” (Id. Ex. A at 9–10.) Because the damage Plaintiff alleges is manifestly outside the scope of his warranty, his express warranty claims—Counts I, II, III, and IV—must all fail. A. Design Choices Are Not Covered Under Kia’s Warranty Plaintiff bases his express warranty claims on Kia’s “design choices,” such as “the materials chosen for parts and components,” that are explicitly excluded from coverage under the terms of Kia’s warranty. (Id. Ex. A at 10.) Plaintiff alleges that some of his Kia Soul’s wires and engine components had to be replaced as a result of a defect in Kia’s “design” and “material” choices—specifically, the choice to use soy-based synthetics in certain wires and engine components. (Id. ¶¶ 24–28.) But Kia’s warranty makes clear that “[a] material is not defective or underperforming under your warranty because a better . . . or more suitable material could have been used.” (Am. Compl. Ex. A at 10.) Even when Plaintiff’s allegations are taken as true, as they must be for purposes of this motion, his express warranty claims must fail under the clear terms of Kia’s warranty. Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 15 of 34 Page ID #:393 7 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 In Troup v. Toyota Motor Corp., 545 Fed. App’x 668 (9th Cir. 2013),1 the Ninth Circuit upheld the dismissal of a similar express warranty claim alleging that Toyota’s design decision to use a particular resin in the construction of its gas tanks rendered the parts defective. Id. at 669. The plaintiffs in Troup alleged the use of resin caused the gas tank to contract in cold weather, causing it to hold less gasoline than its stated capacity and to interfere with the accuracy of the fuel gauge. Gertz v. Toyota Motor Corp., No. CV 10-1089 PSG (VBKx), 2011 U.S. Dist. LEXIS 94183, at *2 (C.D. Cal. Aug. 22, 2011) (Gutierrez, J.), aff’d sub nom. Troup v. Toyota Motor Corp., 545 Fed. App’x at 668. In that case, the district court concluded the plaintiffs were alleging a design defect, given their allegation that the defect existed in every vehicle in the putative class and not “merely the particular vehicle owned by the [plaintiffs].” Id. at *10. It held that, as a matter of California law, Toyota’s warranty for “defects in materials or workmanship” did not extend to design defects. Id. The district court further held that “because the terms of Toyota’s Basic Warranty do not extend to design defects, Plaintiffs fail to state a claim for breach of express warranty.” Id. at *11. The Ninth Circuit affirmed, noting that the gravamen of their complaint was centered on a “design decision” that did not fall within the scope of Toyota’s warranty. Troup, 545 Fed. App’x at 668–69. This case is indistinguishable from Troup in all relevant respects. Plaintiff expressly alleges that his car is “defective in . . . [its] design” because Kia supposedly chose to use soy-based material in “electrical circuits and other cables.” (Am. Compl. ¶ 28.) He alleges every single vehicle in his putative class is defective, regardless of whether they have been damaged by rodents. (See id. ¶¶ 1 (the class vehicles “all contain precisely the same defect”), 5 (“[T]he Class Vehicles all contain a defect . . . .”).) But Kia’s warranty expressly excludes coverage for 1 Although the Ninth Circuit’s affirmance in Troup is unpublished and therefore not binding on this Court, its decision is persuasive and well-reasoned. See Fed. R. App. P. 32.1(a) (courts may not restrict the citation of unpublished opinions issued after January 1, 2007). Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 16 of 34 Page ID #:394 8 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 “manufacturer design choices . . . including the materials chosen for parts and components.” (Id. Ex. A at 10.) Just as in Troup, Plaintiff’s alleged defect is one of design, not of material or workmanship. He does not allege his wires failed to adhere to Kia’s specifications for those parts—he objects to the specification itself. That is, he alleges Kia’s choice to include those parts was defective, just as the plaintiff in Troup alleged a defect in Toyota’s choice to use a particular resin in its gas tanks. As with Troup, this type of design defect falls squarely outside the language of Kia’s warranty. If anything, Plaintiff’s claims here are even further removed from the scope of the warranty’s coverage because here, unlike in Troup, an intervening force caused Plaintiff’s damage. Plaintiff’s express warranty claims should be dismissed because they fall outside the scope of Kia’s warranty. B. Kia’s Warranty Does Not Cover Damage from Environmental Factors Outside Its Control, Such as Rodent Damage Plaintiff alleges that the “defective” soy-based materials “attract animals that chew through the wires and engine-related components,” and that “as a result” of this chewing, those components “are repeatedly damaged, disabled, and rendered unsafe and in a condition that they do not function properly.” (Id. ¶ 5.) This type of damage is outside the scope of Kia’s warranty because it results from unpredictable external forces beyond Kia’s control. Kia’s warranty expressly excludes “Damage due to Factors Beyond the Manufacturer’s Control.” (Id. Ex. A at 9.) Kia’s warranty also does not cover “accidents and incidents that damage your Kia vehicle,” “damage . . . from the environment,” or “acts of God.” (Id.) The warranty thus unambiguously excludes claims for damages from external, natural sources like rodents or other wild animals. Kia is no more responsible under its warranty for Plaintiff’s rodent damage than it is for damage from other natural causes like hail or floods, or from other intervening causes like theft and vandalism. Indeed, under Plaintiff’s theory of warranty, a manufacturer could be held liable for producing Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 17 of 34 Page ID #:395 9 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 “defective” cars of such high quality and value that they attract thieves—a patently absurd result. It is a “well-settled principle that ‘a warranty covers defects in the article sold while insurance indemnifies against damage from perils outside the article.” Pope v. TT of Lake Norman, LLC, 505 F. Supp. 2d 309, 312 (W.D.N.C. 2007) (quoting GAF Corp. v. Cty. Sch. Bd., 629 F.2d 981, 983 (4th Cir. 1980)) (emphasis added). Kia’s warranty is not an insurance policy: it “guarantees against a defect in the product itself” rather than “indemnif[ying] against outside perils” like rodents.2 Tokuhisa v. Cutter Mgmt. Co., 223 P.3d 246, 255 (Haw. Ct. App. 2009) (distinguishing between warranties and insurance policies); see also Cal. Ins. Code § 22 (defining insurance as “a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event” (emphasis added)). This distinction exists for good reason: Kia has no way to predict or control how owners or lessees of its vehicles will use their vehicles or the natural phenomena to which the vehicles are exposed. Some owners or lessees will necessarily expose their vehicles to greater risk of rodent damage—or damage by other wild animals—based on their geography, parking habits, and other factors beyond Kia’s control. For that reason, Kia does not warrant that its wires will not be chewed on by rodents; it warrants only that its wires and other components will 2 Notably, auto insurance companies market policies designed to protect against rodent damage. See, e.g., If a Squirrel Chews Up Wires in Your Car, Are You Protected?, Allstate (Mar. 2014), https://www.allstate.com/tools-and-resources/car- insurance/squirrel-chews-wires.aspx; How to Keep Mice Out of Cars, Ameriprise Auto & Home Ins., https://www.ameriprise.com/auto-home-insurance/learning- center/insurance-tips-for-drivers/bumper-to-bumper-car-care-tips/how-to-keep- mice-out-of-cars.asp (last accessed Sept. 14, 2016) (noting that “At Ameriprise Auto & Home Insurance, rodent damage is included as part of the Comprehensive coverage in your auto insurance policy”); see also Penny Gusner, Is an Animal Chewing Your Car’s Wiring Covered by Car Insurance?, CarInsurance.com (Jan. 14, 2014), http://www.carinsurance.com/kb/is-an-animal-chewing-your-cars- wiring-covered-by-car-insurance.aspx (noting most auto insurers’ comprehensive policies cover damage from rodents and other wild animals). Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 18 of 34 Page ID #:396 10 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 function properly under normal operating conditions. Plaintiff’s express warranty claims all fail on the face of the warranty and should be dismissed. V. PLAINTIFF’S CLAIM UNDER THE DECLARATORY JUDGMENT ACT IS DUPLICATIVE AND SHOULD BE DISMISSED Plaintiff’s claim under the Declaratory Judgment Act should be dismissed because it is nothing but a re-recitation of his breach of express warranty claims. Plaintiff’s claim for declaratory relief seeks a determination of the parties’ “rights and duties with respect to Defendant’s obligations under its warranty” (Am. Compl. ¶ 78)—a determination the Court will also make in adjudicating Plaintiff’s express warranty claims. Where a declaratory judgment cause of action is entirely duplicative of a simultaneously pleaded breach of contract claim, courts in this District routinely dismiss the declaratory judgment cause of action. See, e.g., Zamora v. Zuni Solar, No. 2:16-cv-01260-ODW-KS, 2016 U.S. Dist. LEXIS 83256, at *14–16 (C.D. June 27, 2016) (Wright, J.) (granting dismissal of claim for declaratory relief that was “duplicative of the breach of contract claim”); see also StreamCast Networks, Inc. v. IBIS LLC, No. 05-cv-04239 MMM (Ex), 2006 U.S. Dist. LEXIS 97607, at *61 (C.D. Cal. May 3, 2006) (Morrow, J.) (“Declaratory relief is appropriate . . . [only] where a breach of contract claim will not settle all of the contractual issues concerning which plaintiff seeks declaratory relief.”). Not only is declaratory relief duplicative and unnecessary in this context, but it goes against the purposes of the Declaratory Judgment Act, which is to provide prospective relief that resolves uncertainties or disputes that may result in future litigation. See Zamora, 2016 U.S. Dist. LEXIS 83256, at *15 (citing United States v. Washington, 759 F.2d 1353, 1356–57 (9th Cir. 1985) (en banc) (“Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties.”)). Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 19 of 34 Page ID #:397 11 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 Plaintiff’s declaratory judgment claim seeks only to “ascertain [the parties’] respective rights and duties with respect to Defendant’s obligations under its Warranty.” (Am. Compl. ¶ 78.) He brings this claim not to clarify Plaintiff’s contractual relationship with Kia to avoid future litigation, but to establish that Kia is in breach of its warranty—and that he is entitled to damages. Plaintiff’s claim for declaratory relief is necessarily subsumed by each of his three claims for express warranty (i.e., Counts II, III, and IV), the resolution of which will settle all of the contractual issues for which Plaintiff seeks declaratory relief. This Court should therefore dismiss Plaintiff’s claim for declaratory relief as duplicative. VI. THE MAGNUSON-MOSS CLAIM SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS NOT COMPLIED WITH THE REQUIRED INFORMAL DISPUTE RESOLUTION PROCESS Plaintiff’s claim under the MMWA must be dismissed because he has not complied with the statute’s exhaustion requirement for informal dispute resolution. The MMWA requires a plaintiff to exhaust any informal dispute resolution procedure provided in the written warranty before filing suit. 15 U.S.C. § 2310(a)(3). Under the written warranty for Plaintiff’s car, he is required to “use BBB AUTO LINE prior to seeking remedies available [] through a court action pursuant to the [MMWA].” (Am. Compl. Ex. A at 43.) AUTO LINE is “a special alternative resolution program” available at no cost to consumers to resolve warranty disputes informally without the need for litigation. (Id. at 42–43.) Plaintiff never alleges that he contacted AUTO LINE to initiate, much less exhaust, the required informal dispute resolution procedure. His MMWA claim must therefore be dismissed. In re MyFord Touch Consumer Litig., 46 F. Supp. 3d 936, 989 (N.D. Cal. 2014); cf. Parkinson v. Hyundai Motor Am., 258 F.R.D. 580, 593 (C.D. Cal. 2008) (Stotler, J.) (noting the “strong presumption in favor of encouraging alternative dispute resolution under the [MMWA]” and declining to excuse plaintiffs’ failure to use BBB AUTO LINE service “[w]ithout further elaboration” from plaintiffs). Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 20 of 34 Page ID #:398 12 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 VII. PLAINTIFF’S IMPLIED WARRANTY CLAIM MUST FAIL Plaintiff cannot state a claim for breach of the implied warranty of merchantability for three independent reasons. First, Plaintiff cannot state an implied warranty claim against Kia under Illinois law because he is not in privity with Kia. Second, damage to a vehicle caused by rodents does not render a car “unmerchantable.” Third, the implied warranty cannot cover this alleged defect because the implied warranty must be read to be consistent with the express warranty, which excludes coverage here, as discussed above. A. Plaintiff Is Not in Privity with Kia As an initial matter, Plaintiff cannot state an implied warranty claim against Kia because he is not in privity with Kia. Plaintiff brings his implied warranty claim under Illinois law (Am. Compl. ¶ 121), which requires contractual privity between him and Kia. See Darne v. Ford Motor Co., No. 13 C 03594, 2015 U.S. Dist. LEXIS 169752, at *13 (N.D. Ill. Dec. 18, 2015) (dismissing Illinois implied warranty claim where plaintiffs lacked privity with auto manufacturer); Hackett v. BMW of N. Am., LLC, No. 10 C 7731, 2011 U.S. Dist. LEXIS 71063, at *4 (N.D. Ill. June 30, 2011) (same). Under Illinois law, plaintiffs are not in privity with and cannot bring implied warranty claims against car manufacturers merely because they purchased or leased a car from an authorized dealer. See Connick v. Suzuki Motor Co., Ltd., 675 N.E.2d 584, 592 (Ill. 1996); Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 525 (7th Cir. 2003). Plaintiff does not allege facts showing he was in contractual privity with Kia as required under Illinois law, notwithstanding his conclusory assertion that he “had sufficient dealings with either Defendant or its authorized dealers to establish privity of contract.” (Am. Compl. ¶ 129.) Privity requires a “direct contractual relationship” such as the one between a car dealer and a lessee. Szajna v. Gen. Motors Corp., 503 N.E.2d 760, 764–67 (Ill. 1986) (upholding “strict privity requirement” in implied warranty claims). Plaintiff expressly alleges he “leased a Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 21 of 34 Page ID #:399 13 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 new 2015 Kia Soul for his personal use from an authorized Kia dealer, Gerard Kia of Naperville” (Id. ¶ 17)—not from Kia. Plaintiff cannot explain how use of “dealer financing” or “floor plan financing arrangements” could establish privity between him and Kia, which does not exist as a matter of Illinois law. (Id. ¶ 129.) Nor does he offer any more than a conclusory assertion that he is a third-party beneficiary of unidentified “contracts between Kia and its dealers” and does not explain how those contracts could establish privity. (See id.) His implied warranty must be dismissed for lack of privity. B. No Implied Warranty Covers Damage from Rodents Plaintiff’s implied warranty claim should also be dismissed because the alleged defect does not render his Kia Soul unmerchantable or unfit for driving. As one state supreme court noted in considering similar allegations, “the implied warranty [of merchantability] cannot be read to require the distribution of a mouse proof vehicle.” Powers v. Am. Honda Motor Co., 79 P.3d 154, 157 (Idaho 2003) (where plaintiffs alleged mice entered and nested in their minivan’s engine compartment, Idaho Supreme Court held that motion for directed verdict should have been granted on plaintiff’s implied warranty claim). Rather, merchantability “requires only that a vehicle be reasonably suited for ordinary use. It need not be perfect in every detail so long as it ‘provides for a minimum level of quality.’” Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962, 980 (C.D. Cal. 2014) (quoting Am. Suzuki v. Superior Court, 37 Cal. App. 4th 1291, 1296 (1995)). “The basic inquiry . . . is whether the vehicle was fit for driving.” Id.; see also 810 Ill. Comp. Stat. 5/2-314(2)(c) (a good is “merchantable” if it is “fit for the ordinary purposes for which such goods are used”). To allege a breach of the implied warranty of merchantability, Plaintiff must allege a defect so severe that it “drastically undermine[s] the ordinary operation of the vehicle.” Troup, 545 Fed. App’x at 669; see also Tietsworth v. Sears, Roebuck & Co., 720 F. Supp. 2d 1123, 1142 (N.D. Cal. 2010) (“The mere manifestation of a defect by Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 22 of 34 Page ID #:400 14 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 itself does not constitute a breach of the implied warranty of merchantability. Instead, there must be a fundamental defect that renders the product unfit for its ordinary purpose.”). Plaintiff does not allege a defect that renders a car unmerchantable. He does not allege the use of soy-based materials in various engine components itself renders a car unfit for driving, or that any defect inherent in those components rendered his Kia Soul unsafe for driving. Instead, the alleged defect requires the intervening actions of wild animals, which infiltrate the engine compartments of vehicles and cause damage. (Am. Compl. ¶ 27.) Even if one accepts Plaintiff’s unsupported allegation that Kia’s components attract rodents, “[a] product which performs its ordinary function adequately does not breach the implied warranty of merchantability merely because it does not function as well as the buyer would like, or even as well as it could.” Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 U.S. Dist. LEXIS 2140, at *24–25 (N.D. Cal. Jan. 8, 2015) (quoting Gen. Motors Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex. 1998)). Further, Plaintiff alleges no facts showing that his particular car was unmerchantable. He does not even allege he stopped using it. See Lee, 992 F. Supp. 2d at 980 (citing Kent v. Hewlett-Packard Co., No. 09-5341 JF (PVT), 2010 U.S. Dist. LEXIS 76818, at *12 (N.D. Cal. July 6, 2010)) (dismissing implied warranty claim where plaintiffs continued to use vehicles). He does not allege any problems operating his Kia Soul both before the rodents damaged the wires and after the damaged wires were repaired. His only allegations of a “defect” in the wiring relate to the period after rodents had chewed on them and before the wires were replaced. (Am. Compl. ¶¶ 41, 44, 51.) That is, Plaintiff does not allege that Kia sold him a car that was unfit for driving; he alleges only that his car can become unfit for driving if rodents chew through its components. Plaintiff’s Kia Soul is not unmerchantable, and his implied warranty claim should be dismissed. Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 23 of 34 Page ID #:401 15 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 C. The Implied Warranty Cannot Override the Express Warranty Finally, Plaintiff’s implied warranty claim should be dismissed because it must be read to be consistent with the express warranty, which excludes any coverage for the alleged defect. Under the UCC, implied warranties are construed to be consistent with express warranties—“express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.” 810 Ill. Comp. Stat. 5/2-317. Because Kia’s warranty expressly disclaims coverage for Kia’s choice of materials and damage caused by factors beyond Kia’s control (such as rodents), as discussed above, the express warranty displaces any inconsistent implied warranty that would cover damage caused by design choices or rodents. See Grodzitsky v. Am. Honda Motor Co., No. 2:12-cv-1142-SVW-PLA, 2013 U.S. Dist. LEXIS 82746, at *41–42 (C.D. Cal. June 12, 2013) (Wilson, J.) (holding that an implied warranty that “conflicts with the contract’s specifications . . . is . . . displaced by the express warranty” (quoting N.J. Transit Corp. v. Harsco Corp., 497 F.3d 323, 329 (3d Cir. 2007))); Consol. Papers, Inc. v. Dorr-Oliver, Inc., 451 N.W.2d 456, 462 (Wis. Ct. App. 1989) (express warranty that disclaimed damage for “decomposition by chemical action” “overrides” any implied warranties of merchantability for corrosion damage). Plaintiff’s implied warranty claim should be dismissed with prejudice on this basis alone. VIII. PLAINTIFF FAILS TO STATE A CLAIM UNDER THE ILLINOIS CONSUMER PROTECTION STATUTES Plaintiff’s cause of action under the Illinois Consumer Fraud Act and Uniform Deceptive Trade Practices Act fails for two reasons. First, the claim cannot proceed as an affirmative misrepresentation claim because Plaintiff never identifies any specific actionable representations. Second, the claim cannot proceed as a fraudulent omission claim because Plaintiff never alleges facts showing that Kia knew about the alleged defect prior to his lease. Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 24 of 34 Page ID #:402 16 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 A. The Complaint Fails to Identify Any Actionable Misrepresentation Plaintiff fails to state an affirmative misrepresentation claim because he does not identify any specific misrepresentation that could serve as the basis for that claim. He therefore cannot meet the pleading requirements of Rule 9(b). His claims under state consumer protection statutes must be pleaded with particularity under Rule 9(b) because they sound in fraud. See Greenberger v. GEICO Gen. Ins. Co., 631 F.3d 392, 399 (7th Cir. 2011) (“Claims for violation of the Consumer Fraud Act . . . must satisfy the particularity requirement of Rule 9(b) . . . .”). Rule 9(b) requires Plaintiff to plead the time, place, and content of the alleged misrepresentation or omission along with facts demonstrating his reliance on the allegedly fraudulent conduct. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Fed. R. Civ. P. 9(b) (Plaintiff must “state with particularity the circumstances constituting fraud or mistake”). The complaint never identifies a specific actionable representation made by Kia. While Plaintiff makes conclusory allegations in his consumer fraud claim that “Kia represented . . . that its Class Vehicles had no known defects . . . and had proper functioning wiring and engine-related components and that its Class Vehicles have a comprehensive warranty” (Am. Compl. ¶ 136), Plaintiff never specifies the actual statements Kia supposedly made, where or when Kia made these alleged representations, or where or when Plaintiff actually saw the supposed representations. See McLaughlin v. LVNV Funding, LLC, 971 F. Supp. 2d 796, 801 (N.D. Ill. 2013) (dismissing Consumer Fraud Act claim because plaintiff “[did] not allege any statement . . . by which she was actually deceived”). The only specific statement by Kia identified in the complaint appears in the written warranty: the consumer will “be pleased by how strongly we stand behind every Kia vehicle” and the warranty “described in this manual is one of the finest available.” (Am. Compl. ¶ 56.) But Plaintiff never alleges he read the warranty or saw that statement before he leased the vehicle. He only alleges he reviewed the Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 25 of 34 Page ID #:403 17 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 “Maroney Sticker” and sales brochures before his lease. Thus, he could not have been deceived by that statement. See McLaughlin, 971 F. Supp. 2d at 801 (under the Consumer Fraud Act, plaintiff must “prove that the defendant’s deception resulted in damages”) (citing Priebe v. Autobarn, Ltd., 240 F.3d 584, 588 (7th Cir. 2001)). Moreover, the statements that the consumer will be “pleased” and that the warranty is “one of the finest available” are too vague and subjective to be actionable as fraud. A seller’s subjective expression of quality “comes under the category of sales puffery upon which no reasonable person could rely in making a decision” and cannot be the basis of a fraud claim. Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1008–09 (7th Cir. 2004) (finding that the phrase “high quality” was non-actionable sales puffery). Plaintiffs cannot base their fraud claim on subjective statements that customers will be “pleased” or that warranties are the “finest.” Wozniak v. Align Tech., Inc., 850 F. Supp. 2d 1029, 1036 (N.D. Cal. 2012) (statement that CEO was “pleased” with development was non-actionable puffery); State v. Am. TV & Appliance of Madison, Inc., 430 N.W.2d 709, 712–13 (Wis. 1988) (statement that product was “the finest” was non-actionable puffery). Plaintiff therefore fails to state an affirmative fraud claim. B. Plaintiff Cannot State a Fraudulent Omission Claim Because There Are No Alleged Facts Showing Kia Knew of the Defect Plaintiff also cannot state a claim based on fraudulent omission because he has not alleged any facts that show Kia knew that its vehicles had the alleged defect. When a plaintiff bases a claim under the Illinois Consumer Fraud Act or Deceptive Trade Practices Act on a fraudulent concealment or omission, as Plaintiff does here, he “must allege that the fact omitted or concealed was known to the defendant at the time of concealment.” Evitts v. DaimlerChrysler Motors Corp., 834 N.E.2d 942, 948 (Ill. App. Ct. 2005) (emphasis added); cf. also Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1145 (9th Cir. 2012) (fraudulent omission Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 26 of 34 Page ID #:404 18 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 actionable under California consumer protection law only when defendant had knowledge of the alleged defect). While the fact of knowledge may be pleaded generally, see Fed. Rule of Civ. P. 9(b), conclusory allegations of knowledge are insufficient—Plaintiff must state specific facts showing that Kia knew of the defect. See Fisher v. Honda N. Am., Inc., No. LA CV13-09285 JAK(PLAx), 2014 WL 2808188, at *4–6 (C.D. Cal. June 12, 2014) (dismissing door lock defect claim because plaintiffs did not plead facts showing that manufacturer had knowledge); Taragan v. Nissan N. Am., Inc., No. C 09-3660 SBA, 2013 WL 3157918, at *6 (N.D. Cal. June 20, 2013) (“[A] plaintiff alleging the existence of a duty to disclose must offer ‘specific substantiating facts’ demonstrating that the defendant has ‘exclusive knowledge’ about an alleged defect . . . .”). Plaintiff’s allegations are insufficient to plead that Kia had notice that its vehicles were allegedly defective. He makes a conclusory allegation that Kia knew of the defect “through internal research and industry knowledge, receipt of consumer complaints, . . . communications with dealers . . . , and complaints filed by consumers with the National Highway Traffic Safety Administration (“NHTSA”).” (Am. Compl. ¶ 9.) But he offers no specific allegations that would support a “plausible inference that [Kia] was aware of the defect at the time it sold the vehicles . . . and acquired this knowledge through the sorts of internal data [he] allege[s].” Parenteau v. GM, LLC, No. CV 14-04961-RGK (MANx), 2015 U.S. Dist. LEXIS 31184, at *16 (C.D. Cal. Mar. 5, 2015). Plaintiff first points to two news reports that appeared on local TV stations in Cleveland, Ohio, and West Palm Beach, Florida, about issues with soy-based components in non-Kia vehicles. (Am. Compl. ¶¶ 29–30.) Neither report makes any mention of Kia, and there are no allegations that either of these local TV broadcasts regarding other manufacturers’ vehicles was ever brought to Kia’s attention. Plaintiff also uncovered three postings about soy-based wiring on internet Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 27 of 34 Page ID #:405 19 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 message boards, only two of which predate Plaintiff’s lease. (Id. ¶¶ 32, 34–35.) However, “[r]andom anecdotal examples of disgruntled customers posting their views on websites at an unknown time is not enough to impute knowledge upon defendants.” Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 974 n.9 (N.D. Cal. 2008). These two internet postings were not sent to Kia, and Plaintiff does not allege any facts showing Kia ever acknowledged the postings or knew that they even existed. The third posting is dated after Plaintiff entered into his lease and could not have provided Kia notice of the supposed defect at that time. Plaintiff then alleges that a single consumer sent a complaint to NHTSA in 2013, when the owner of a 2013 Kia Soul said he took a car to “a dealer,” where a technician said rodents “eat” wires because they are “soy based.” (Am. Compl. ¶ 33.) The complaint also mentions that “[t]he manufacturer was notified of the failure,” but it does not mention whether Kia was notified of the technician’s theory about the cause of rodent damage. (See id.) Even if Kia had been so notified, one complaint on the NHTSA website is insufficient to show that Kia had knowledge of a systemic defect in the wiring of all of its vehicles. Indeed, consumer complaints alone are insufficient to plead that the defendant had knowledge of a defect. See Wilson, 668 F.3d at 1147–48. Courts have repeatedly required plaintiffs to plead, in addition, some communication or action by the defendant that shows notice or acknowledgement of the complaints, such as the issuance of a Technical Service Bulletin (“TSB”). See Parenteau, 2015 U.S. Dist. LEXIS 31184, at *14–18 (defendant sent “Tech Link” articles and customer satisfaction letters to dealers regarding defect); MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1093 (N.D. Cal. 2014) (defendant sent TSBs to dealers); Mui Ho v. Toyota Motor Corp., 931 F. Supp. 2d 987, 991 (N.D. Cal. 2013) (same); Falco v. Nissan N. Am., Inc., No. CV 13-00686 DDP (MANx), 2013 WL 5575065, at *6 (C.D. Cal. Oct. 10, 2013) (same); Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1225–26 (C.D. Cal. 2011) (same). There are no such allegations here. Nor does Plaintiff Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 28 of 34 Page ID #:406 20 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 allege that NHTSA opened an investigation concerning the alleged defect (it has not), or provide any other indication that the type of rodent damage he alleges was such a widespread problem that Kia would have been aware of it. Indeed, the fact that Plaintiff can only identify a single NHTSA complaint belies his assertion that there is any defect at all, much less one that is systematic or widespread. Finally, Plaintiff identifies an online post by Consumer Reports that mentions technical service bulletins from other automakers explaining generally how to prevent rodent damage. (Id. ¶ 37.) He does not attach these bulletins and does not even allege they attribute rodent damage to soy-based materials in electronics or other components. These TSBs cannot provide notice to Kia that its vehicles had any issues tied to any soy-based components. Thus, the only allegations that actually identify an issue with Kia vehicles predating Plaintiff’s lease are two comments made on internet message boards and one consumer complaint made to NHTSA. That is not sufficient to plead notice. Even where courts have referenced consumer complaints as evidencing knowledge of a systematic defect (in conjunction with TSBs or other evidence of notice), the courts have relied on far more than just one or two complaints. See MacDonald, 37 F. Supp. 3d at 1093 (over thirteen complaints, along with other indications of knowledge, e.g., TSBs); Belle v. Chrysler Grp., LLC, No. SACV 12-00936 JVS (RNBx), 2013 WL 949484, *2 (C.D. Cal. Jan. 29, 2013) (38 complaints, among other evidence of notice); Falk v. General Motors Corp., 496 F. Supp. 2d 1088, 1092 (N.D. Cal. 2007) (“hundreds” of complaints, among other evidence of notice). In sum, Plaintiff has not alleged facts showing that Kia knew of the alleged defect at the time of sale, so his claims under the Illinois Consumer Fraud Act and Uniform Deceptive Trade Practices Act must fail. IX. PLAINTIFF’S NATIONWIDE CLASS ALLEGATIONS SHOULD BE STRUCK Plaintiff makes nationwide class allegations for breach of express warranty Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 29 of 34 Page ID #:407 21 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 under California state law, Illinois state law, and the federal MMWA. All of these class allegations should be struck because California choice-of-law rules preclude certification of a nationwide class for breach of express warranty. In Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), an automobile defect class action similar to this case, the Ninth Circuit held that no single state’s law could be applied to a nationwide class if the interests of that state are outweighed by the interests of other states in having their law applied. Id. at 590. California federal courts follow the choice-of-law rules of California state courts, which employ a three-step governmental interest test to determine whether a state’s law can apply on a state-wide basis: • “First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. • Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists. • Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately applies the law of the state whose interest would be more impaired if its law were not applied.” Mazza, 666 F.3d at 590 (citing McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 81– 82 (2010)) (emphasis added). While Mazza itself was decided at class certification, “the principle articulated in Mazza applies generally and is instructive even when addressing a motion to dismiss.” Frezza v. Google, Inc., No. 5:12-cv-00237-RMW, 2013 U.S. Dist. LEXIS 57462, at *17 (N.D. Cal. Apr. 22, 2013). Numerous district courts Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 30 of 34 Page ID #:408 22 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 have followed Mazza in dismissing or striking nationwide class actions at the pleading stage where plaintiffs have improperly sought to apply California laws to injuries occurring in other states. See, e.g., Glenn v. Hyundai Motor Am., No. SA CV 15-2052-DOC (KESx), 2016 WL 3621280, at *10 & n.9 (C.D. Cal. June 24, 2016) (Carter, J.); Davison v. Kia Motors Am., Inc., SACV 15-00239-CJC(RNBx), 2015 WL 3970502, at *3 (C.D. Cal. June 29, 2015) (Carney, J.); Frenzel v. Aliphcom, 76 F. Supp. 3d 999, 1010 (N.D. Cal. 2014); Route v. Mead Johnson Nutrition Co., No. CV 12-7350-GW(JEMx), 2013 U.S. Dist. LEXIS 35069, at *22– 27 (C.D. Cal. Feb. 21, 2013) (Wu, J.); Frezza, 2013 U.S. Dist. LEXIS 57462, at *15–24. The principles articulated in Mazza are dispositive here and require that Plaintiff’s nationwide class allegations for breach of express warranty be struck. There are at least three material differences in states’ express warranty laws that prevent application of either California or Illinois law on a nationwide basis. Rikos v. P&G, No. 1:11-cv-226, 2012 U.S. Dist. LEXIS 25104, at *16–19 (S.D. Ohio Feb. 28, 2012); see also Route, 2013 U.S. Dist. LEXIS 35069, at *23 (citing Rikos) (finding “Mazza and California’s choice of law rules . . . hold that no nationwide class claim could be certified as to a California breach of express warranty claim”). 1. Privity. — Some states provide an exception to privity requirements where the plaintiff relied on product labels or advertising, others require privity in all circumstances, and still others require it in no circumstances.3 3 Compare, e.g., Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54 Cal. App. 4th 357, 369 n.10 (1997) (under California law, exception exists to privity requirement “where plaintiff’s decision to purchase the product was made in reliance on the manufacturer’s written representations in labels or advertising materials”), with T.W.M. v. Am. Med. Sys., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (strict privity required under Florida law), and Fortune View Condo. Ass’n v. Fortune Star Dev. Co., 90 P.3d 1062, 1065 (Wash. 2004) (under Washington law, no privity required in express warranty claim). Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 31 of 34 Page ID #:409 23 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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. Reliance. — Reliance is not an element of an express warranty claim in some states, while others require a plaintiff to prove reliance or “reasonable reliance,” apply a burden shifting method, or presume reliance.4 3. Notice. — Some states require plaintiffs in express warranty actions to give notice to the manufacturer, while other states require notice only to the seller, and still others do not require notice at all.5 Rikos, 2012 U.S. Dist. LEXIS 25104, at *16–19.6 A true conflict of laws exists because under California’s choice of law rules, “[e]very state has an interest in having its law applied to its resident claimants,” in part because states have an interest in setting the appropriate level of liability for companies conducting business within their territory. Rikos, 2012 U.S. Dist. LEXIS 25104, at *19–20; Mazza, 666 F.3d 581, 591–92 (citing Zinser v. Accufix Research 4 Compare, e.g., Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 644–45 (10th Cir. 1991) (Colorado law does not require showing of reliance to state breach of express warranty), with Baughn v. Honda Motor Co., 727 P.2d 655, 669 (Wash. 1986) (under Washington law, reliance not required but plaintiff must at least show she was aware of the defendant’s representations), Scaringe v. Holstein, 103 A.D.2d 880, 880 (N.Y. App. Div. 1984) (reliance is necessary element of claim for breach of express warranty under New York law), Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986) (under California law, breach of express warranty claim requires showing of “plaintiff’s reasonable reliance”), and Cipollone v. Liggett Grp., Inc., 893 F.2d, 569 n.34 (3d Cir. 1990) (under New Jersey law, plaintiff’s showing she saw advertisements creates rebuttable presumption of reliance, which defendant can overcome by proving plaintiff disbelieved the statement, which then shifts burden again to plaintiff to prove reliance directly). 5 Compare, e.g., Redfield v. Mead, Johnson & Co., 512 P.2d 776, 781 (Or. 1973) (under Oregon law, breach of warranty claim is barred where plaintiff does not provide notice of claim to manufacturer), with Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1142–43 (N.D. Cal. 2010) (California law requires notice to manufacturer, except where consumer did not purchase product from manufacturer directly), Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 742 (Colo. 1991) (under Colorado law, notice to remote manufacturer not required, but notice to immediate seller is required), and Fischer v. Mead Johnson Labs., 41 A.D.2d 737, 737 (N.Y. App. Div. 1973) (under New York law, no notice requirements in consumer transactions). 6 The conflicts in various state laws are also summarized in the chart concurrently filed as the Appendix of Variations in State Laws. Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 32 of 34 Page ID #:410 24 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 Inst., Inc., 253 F.3d 1180, 1187 (9th Cir. 2001); McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 91 (2010)). Consequently, in any consumer products case, the state with the predominant interest in having its laws apply is the state where the “last event necessary to make the actor liable occurred”—that is, the state in which the consumer purchased the product. Mazza, 666 F.3d at 593; see also Rikos, 2012 U.S. Dist. LEXIS 25104, at *20. Because California choice-of-law rules mandate the application of each state’s unique and idiosyncratic requirements to the express warranty claims of class members residing in those states, individual issues of law will necessarily predominate in Plaintiff’s breach of express warranty claims. And because no nationwide classes can be certified in these circumstances, these allegations should be struck from Plaintiff’s complaint. Plaintiff’s MMWA claim is derivative of state breach of warranty law, so no nationwide class can be certified for that claim, either. The MMWA provides a federal cause of action for breach of warranty that incorporates and requires the application of state warranty law. See Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929, 954 (C.D. Cal. 2012) (Morrow, J.). Consequently, all the same variations in state express warranty law, and all the same conflicts in government interests in applying that law, apply equally to Plaintiff’s MMWA claim for breach of express warranty. It, too, cannot be certified as a matter of law, and so Plaintiff’s nationwide class allegations under the MMWA should be struck from the complaint. X. CONCLUSION Kia’s warranty is not an insurance policy that protects Plaintiff against external threats like rodents, and Plaintiff was not entitled to a rodent-proof car under an implied warranty. Plaintiff does not allege any facts that would suggest Kia knew of his supposed “defect” and intended to deceive him during his purchase. His complaint should be dismissed in its entirety. Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 33 of 34 Page ID #:411 25 MEMO. ISO MOT. TO DISMISS AND/OR STRIKE AMENDED COMPLAINT, 8:16-CV-01020-CJC-DFM 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 Dated: September 14, 2016 CARLOS M. LAZATIN MICHAEL REYNOLDS JASON ORR O’MELVENY & MYERS LLP By: /s/ Carlos M. Lazatin Carlos M. Lazatin Attorneys for Defendant KIA MOTORS AMERICA, INC. Case 8:16-cv-01020-CJC-DFM Document 22-1 Filed 09/14/16 Page 34 of 34 Page ID #:412 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 CARLOS M. LAZATIN (S.B. #229650) clazatin@omm.com MICHAEL REYNOLDS (S.B. #270962) mreynolds@omm.com JASON ORR (S.B. #301764) jorr@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant KIA MOTORS AMERICA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION TSVETELIN TSONEV, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. KIA MOTORS AMERICA, INC., Defendant. Case No. 8:16-cv-01020-CJC-DFM CLASS ACTION APPENDIX OF VARIATIONS IN STATE LAWS [Concurrently filed/lodged with moving papers] Hearing Date: November 7, 2016 Time: 1:30 p.m. Courtroom: 9B Judge: Hon. Cormac J. Carney Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 1 of 9 Page ID #:413 1 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 APPENDIX VARIATIONS IN BREACH OF EXPRESS WARRANTY LAW MATERIAL DIFFERENCE EXAMPLES PRIVITY States Where Claim for Breach of Express Warranty Barred in Absence of Vertical Privity Arizona — Flory v. Silvercrest Indus. Inc., 633 P.2d 383, 387 (Ariz. 1981) (“[A]s to [implied and express] warranties, we hold that lack of privity does preclude recovery.”). Florida — T.W.M. v. Am. Med. Sys., 886 F. Supp. 842, 844 (N.D. Fla. 1995) (“The law of Florida is that to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant.”). States Where Privity Not Required Washington — Fortune View Condo. Ass’n v. Fortune Star Dev. Co., 90 P.3d 1062, 1065 (Wash. 2004) (“[P]rivity is not required to create express warranties.”) (emphasis removed). Ohio — Curl v. Volkswagen of Am., Inc., 2005- Ohio-6420 ¶ 34 (Ohio Ct. App. 2005) (“[W]here there is an expressed warranty, the ultimate consumer may recover even with an absence of direct privity.”), rev’d on other grounds, 871 N.E.2d 1141 (Ohio 2007). Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 2 of 9 Page ID #:414 2 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES States Where Judicially Created Exceptions to Privity Requirement California — Fieldstone Co. v. Briggs Plumbing Prods, Inc., 54 Cal. App. 4th 357, 369 n.10 (1997) (“As a general rule, privity of contract is a required element of an express breach of warranty cause of action. . . . However, there is an exception where plaintiff’s decision to purchase the product was made in reliance on the manufacturers’ written representations in labels or advertising materials.”) (citations omitted). Illinois — Spiegel v. Sharp Elec. Corp., 466 N.E.2d 1040, 1043 (Ill. Ct. App. 1984) (“[P]rivity generally remains a requirement in all warranty actions in Illinois except an action for personal injury based upon breach of an express or implied warranty against a remote manufacturer.”). RELIANCE States Where Reliance Required In Some Form Florida — State Farm Ins. Co. v. Nu Prime Roll-A- Way, Inc., No. 89-1326, 1990 Fla. App. LEXIS 706, at *2 (Fla. Ct. App. Feb. 6, 1990) (citing Manheim v. Ford Motor Co., 201 So.2d 440 (Fla. 1967) (“[A] seller’s representations in newspaper advertisements . . . (may) constitute an express warranty . . . to one who, in making the purchase, relies thereon to his injury.”). Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 3 of 9 Page ID #:415 3 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES Mississippi — Global Truck & Equip. Co. v. Palmer Mach. Works, Inc., 628 F. Supp. 641, 652 (N.D. Miss. 1986) (applying Mississippi law) (no breach of express warranty where plaintiff did not show he relied on seller’s affirmations). New York — Scaringe v. Holstein, 103 A.D.2d 880, 880 (N.Y. App. Div. 1984) (“A necessary element in the creation of an express warranty is the buyer’s reliance upon the seller's affirmations or promises.”). Rhode Island — Thomas v. Amway Corp., 488 A.2d 716, 720 (R.I. 1985) (“The Plaintiff who claims breach of express warranty has the burden of proving that the statements or representations made by the seller induced her to purchase that product and that she relied upon such statements or representations.”). California — Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 142 (1986) (stating that one element of an express warranty claim is “plaintiff’s reasonable reliance” on the terms of the warranty). States Where Reliance Is Presumed Under Burden- Shifting Rule New Jersey — Cipollone v. Liggett Grp., Inc., 893 F.2d 541, 569 n.34 (3d Cir. 1990) (applying New Jersey law) (“In the context of advertisements claimed to be warranties, a plaintiff buyer must first Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 4 of 9 Page ID #:416 4 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES prove that she saw the advertisements. This raises a (rebuttable) presumption of belief, which in turn raises [a] []rebuttable presumption of reliance. Next, a defendant seller may rebut the presumption of reliance, but only by proving that the plaintiff disbelieved the advertisement. . . . Successfully proving disbelief creates a new rebuttable presumption of nonreliance. Finally, the plaintiff may rebut this presumption by proving reliance directly.” (citation omitted)), aff’d in part & rev’d in part on other grounds, 505 U.S. 504 (1992). States Where Authorities Are Split on Issue of Reliance Illinois — Compare Coryell v. Lombard Lincoln- Mercury Merkur, Inc., 544 N.E.2d 1154, 1158 (Ill. App. Ct. 1989) (“[T]he buyer must show reliance on the seller's representations in order for an express warranty to exist.”), with Felley v. Singleton, 705 N.E.2d 930, 934 (Ill. App. Ct. 1999) (holding that showing of reliance is unnecessary, but noting “[w]e recognize that Illinois courts have not always consistently stated these principles”); see also Duncan Place Owners Ass’n v. Danze, Inc., No. 15 C 01662, 2016 U.S. Dist. LEXIS 85070, at *35 (N.D. Ill. June 30, 2016) (noting split in authority under Illinois law). Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 5 of 9 Page ID #:417 5 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES States Where Reliance Not Required Colorado — Lutz Farms v. Asgrow Seed Co., 948 F.2d 638, 644–45 (l0th Cir. 1991) (applying Colorado law) (express warranty created even though buyer did not rely on seller’s statements). Virginia — Daughtrey v. Ashe, 413 S.E.2d 336, 338–39 (Va. 1992) (buyer need not prove reliance on description because the UCC was intended to modify the traditional requirement of reliance). States Where Reliance Not Required But Plaintiff Must Show He Was Aware of Defendant’s Representations Washington — Baughn v. Honda Motor Co., 727 P.2d 655, 669 (Wash. 1986) (even though reliance need not be proven, the plaintiff “must at least be aware of [the seller’s] representations [in the express warranty] to recover for their breach”). NOTICE States Where Some Form of Notice to Manufacturer Is Required Arkansas — Cotner v. Inn Harvester Co., 545 S.W.2d 627, 630 (Ark. 1977) (requiring notice to manufacturer but noting requirement is “not stringent”). Kansas — Carson v. Chevron Chem. Co., 635 P.2d 1248, 1256 (Kan. Ct. App. 1981) (requiring notice only where buyer met and consulted with manufacturer in purchase). Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 6 of 9 Page ID #:418 6 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES Oregon — Redfield v. Mead, Johnson & Co., 512 P.2d 776, 781 (Or. 1973) (requiring notice to manufacturer). Wyoming — W. Equip. Co. v. Sheridan Iron Works, Inc., 605 P.2d 806, 810–11 (Wyo. 1980) (requiring notice to manufacturer). California — Stears v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1142 & n.8 (N.D. Cal. 2010) (applying California law) (requiring notice to manufacturer, except where consumer did not purchase product from manufacturer directly). States Where Notice to Immediate Seller Is Sufficient Colorado — Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 742 (Colo. 1991) (purchaser injured by product required to give notice to immediate seller, but not remote manufacturer, before initiating litigation). North Carolina — Seaside Resorts, Inc. v. Club Car, Inc., 416 S.E.2d 655, 663 (S.C. Ct. App. 1992) (applying North Carolina law) (“[N.C. UCC] requires a retail buyer to notify only the retail seller who tendered the goods to him, not wholesalers, distributors, manufacturers, or others who sold the goods further up the chain of commerce.”). Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 7 of 9 Page ID #:419 7 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES States Where Delays of Several Months Have Foreclosed Breach of Warranty Claim District of Columbia — Mariner Water Renaturalizer, Inc. v. Aqua Purification Sys., Inc., 665 F.2d 1066, 1069 (D.C. Cir. 1981) (applying District of Columbia law) (affirming district court’s finding that a delay of five to eight weeks in notification was untimely). Massachusetts — P & F Constr. Corp. v. Friend Lumber Corp., 575 N.E.2d 61, 64 (Mass. App. Ct. 1991) (three and a half month delay untimely). Oregon — Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 445 (9th Cir. 1967) (applying Oregon law) (four and a half month delay in giving notice held untimely). States Where Longer Delays Have Been Tolerated Florida — Lafayette Stabilizer Repair, Inc. v. Mach. Wholesalers Corp., 750 F.2d 1290, 1294 (5th Cir. 1985) (applying Florida law) (delay of six months not untimely). North Carolina — Maybank v. S.S. Kresge Co., 273 S.E.2d 681, 685 (N.C. 1981) (delay of three years held not to have been “unreasonable as a matter of law”). South Dakota — Opp v. Nieuwsma, 458 N.W.2d 352, 356–57 (S.D. 1990) (four month delay not untimely). Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 8 of 9 Page ID #:420 8 APP’X OF VARIATIONS IN STATE LAWS, 8:16-CV-01020-CJC-DFM 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 MATERIAL DIFFERENCE EXAMPLES States Where Notice Is Not Required New York — Fischer v. Mead Johnson Labs., 41 A.D.2d 737, 737 (N.Y. App. Div. 1973) (UCC notice requirement “is to be applied, if at all, differently in commercial and retail sales situations”). Dated: September 14, 2016 CARLOS M. LAZATIN MICHAEL REYNOLDS JASON ORR O’MELVENY & MYERS LLP By: /s/ Carlos M. Lazatin Carlos M. Lazatin Attorneys for Defendant KIA MOTORS AMERICA, INC. Case 8:16-cv-01020-CJC-DFM Document 22-2 Filed 09/14/16 Page 9 of 9 Page ID #:421 [PROPOSED] ORDER GRANTING MTD AND/OR STRIKE AM. COMPL., 8:16-CV-01020-CJC-DFM 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 CARLOS M. LAZATIN (S.B. #229650) clazatin@omm.com MICHAEL REYNOLDS (S.B. #270962) mreynolds@omm.com JASON ORR (S.B. #301764) jorr@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant KIA MOTORS AMERICA, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION TSVETELIN TSONEV, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. KIA MOTORS AMERICA, INC., Defendant. Case No. 8:16-cv-01020-CJC-DFM CLASS ACTION [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE ALLEGATIONS IN THE AMENDED COMPLAINT Hearing Date: November 7, 2016 Time: 1:30 p.m. Courtroom: 9B Judge: Hon. Cormac J. Carney Case 8:16-cv-01020-CJC-DFM Document 22-3 Filed 09/14/16 Page 1 of 2 Page ID #:422 1 [PROPOSED] ORDER GRANTING MTD AND/OR STRIKE AM. COMPL., 8:16-CV-01020-CJC-DFM 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 [PROPOSED] ORDER The Court, having considered Defendant Kia Motors America, Inc.’s (“Kia”) Motion to Dismiss and/or Strike Allegations in the Amended Complaint, all other papers and evidence submitted in support, opposition, and reply, the pertinent pleadings and files in this action, and the arguments of counsel, finds good cause to GRANT the Motion. IT IS ORDERED THAT 1. Kia’s Motion to Dismiss is GRANTED and the Amended Class Action Complaint and all claims asserted therein are DISMISSED WITH PREJUDICE. 2. Kia’s Motion to Strike Allegations in the Amended Complaint is GRANTED. Consequently, all nationwide class allegations, and specifically those in paragraph 67 of the Amended Complaint, are hereby struck. Dated: By:_____________________________ The Honorable Cormac J. Carney U.S. District Judge Central District of California Case 8:16-cv-01020-CJC-DFM Document 22-3 Filed 09/14/16 Page 2 of 2 Page ID #:423
