Hauter v. Zogarts

13 Citing briefs

  1. Casey Thornton et al v. Micro Star International Co. Ltd. et al

    MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss First Amended Complaint 37

    Filed November 3, 2017

    The Gizmo fails in both respects.” Hauter, 14 Cal.3d at 117-18. Plaintiffs specifically plead the GT 72/80 laptops: (1) do not pass without objection in the trade; (2) are not of fair average quality within the products’ description; (3) are not adequately contained, packaged, and labeled; or (4) fail to conform to the factual representations made on the product container and label, as evidenced by Exs.

  2. L.A. Taxi Cooperative, Inc. et al v. Uber Technologies, Inc. et al

    REPLY

    Filed June 25, 2015

    ’” 3 Because Hauter involved consumer injury, the court construed the defendant’s statement that the ball could not hit the player “liberally in favor of [the] injured consumer[],” an approach inapposite in this alleged competitor case. See Hauter,14 Cal. 3d at 112. Case3:15-cv-01257-JST Document35 Filed06/25/15 Page11 of 23 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 3442168 - 6 - DEFS’ REPLY ISO OF MOTION TO DISMISS 754 F. Supp. 2d 1145, 1176-77 (C.D. Cal. 2010) (citing and relying on Continental Airlines).4 Similarly, in In re Toyota Motor Corp. Hybrid Brake Mktg., Sales, Practices and Products Liab. Litig., the court held that “specific statements . . . regarding the safety and functionality of the brake system and the ABS” were not puffery.

  3. Kim Allen v. Hylands Inc et al

    Opposition re: MOTION to Dismiss Dismiss First Amended Complaint 38

    Filed April 13, 2012

    The FAC alleges that an implied warranty of merchantability existed and the Products “did not conform to the promises and affirmations made” on the Products’ label. ¶ 112. Under California Commercial Code § 2314(1), "a warranty that the goods shall be merchantable is implied in a contract for their sale." The California Supreme Court has explained that “[m]erchantability has several meanings, two of which are relevant to the instant case: the product must '[conform] to the promises or affirmations of fact made on the container or label, and must be 'fit for the ordinary purposes for which such goods are used.’" Hauter, 14 Cal. 3d at 117 (citing Cal. Com. Code §§ 2315(2)(c), (f)). Defendants argue that the Products are fit for their ordinary purpose of homeopathic remedies, but this is an attempt to limit or exclude the implied warranty of an OTC product, to an implied warranty only covering OTC homeopathic products. “No warranty, express or implied, can be modified or disclaimed unless a seller clearly limits his liability.” Id. at 119

  4. Alexandre Forouzesh v. Starbucks Corporation et al

    NOTICE OF MOTION AND MOTION to Dismiss Case

    Filed July 13, 2016

    “[L]iability for an implied warranty does not depend upon any specific conduct or promise on [the defendant’s] part, but instead turns upon whether the[ ] product is merchantable under the code.” Hauter v. Zogarts, 14 Cal. 3d 104, 117 (1975). Courts have dismissed claims for breach of the implied warranty of merchantability in consumer class actions where plaintiffs have alleged that the products are falsely advertised or otherwise misleading, but fail to allege that the products at issue were not usable -- or consumable -- for their ordinary purpose.

  5. L.A. Taxi Cooperative, Inc. et al v. Uber Technologies, Inc. et al

    RESPONSE to

    Filed June 11, 2015

    For example, the California Supreme Court held that a plaintiff was entitled to recover on a false representation claim after the plaintiff was injured while using a golf training device described as “COMPLETELY SAFE BALL WILL NOT HIT PLAYER.” See Hauter v. Zogarts, 14 Cal.3d 104, 109 (1975). There, the court articulated that factual representations pertaining to Case3:15-cv-01257-JST Document31 Filed06/11/15 Page12 of 24 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 863866.

  6. Oula Zakaria v. Gerber Products Co

    MEMORANDUM in Opposition to MOTION to Dismiss First Amended Complaint 27

    Filed April 20, 2015

    “Merchantability has several meanings [including] the product must ‘conform to the promises or affirmations of fact made on the container or label.’” Hauter v. Zogarts, 14 Cal.3d 104, 117-118 (1975) (emphasis added) (implied warranty existed since product “does not live up to the statement on the carton that it is ‘Completely Safe Ball Will Not Hit Player.’”); In Re Ferrero Litigation, 794 F. Supp. 2d 1007, 1118 (S.D. Cal 2011) (Following Hauter, the court declined to dismiss Plaintiffs’ claim for implied merchantability in a case involving Nutella spread.)

  7. Tasion Communications Inc. v. Ubiquiti Networks, Inc.

    RESPONSE

    Filed May 14, 2014

    Misdescriptions of specific or absolute characteristics of a product are actionable." Stiffel Co. v. Westwood Lighting Group, 658 F. Supp. 1103, 1115 (D.N.J. 1987); See also: Hauter v. Zogarts, 14 Cal. 3d 104, 111-13 (1975) (finding statement that allegedly defective training device for golfers was "Completely Safe Ball Will Not Hit Player" was actionable because the plaintiff's son was seriously injured while using the device when a ball hit him in the head thus proving the statement to be false); Southland Sod Farms, 108 F.3d at 1145 (finding statement that turfgrass seed would result in "50% less mowing" based on "[t]ests conducted by [defendant's] research farm" was actionable because the claim is "specific and measurable"); Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1053-54 (9th Cir. 2008) (finding statements that Ikon would "deliver 95% up-time service" and that its contracts were "for a fixed Case3:13-cv-01803-EMC Document91 Filed05/14/14 Page18 of 26 PLAINTIFFS’ CONSOLIDATED OPPOSITION TO MOTIONS TO DISMISS 13 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 term of sixty (60) months" were actionable because they could be proven

  8. WEBB v. SPECIAL ELECTRIC COMPANY

    Respondent’s Petition for Review

    Filed April 22, 2013

    This court reviewstrial court rulings on each of these motions by applying the same standard that governsa trial court’s hearing of the motion. (Hauter v. Zogarts, | supra, 14 Cal.3d at p. 110.) We evaluate the evidence for sufficiency in the light most favorable to the party opposing the motion, without consideration ofconflicting evidence.

  9. Baltazar et al v. Apple Inc

    Memorandum in Opposition re MOTION to Dismiss Defendant Apple Inc.'s Renotice of Motion and Motion to Dismiss Plaintiffs' First Amended Complaint

    Filed January 7, 2011

    In plain terms, the iPad must be capable of performing those functions expected of a portable computing device. See, generally, Hauter v. Zogarts, 14 Cal.3d 104, 118 (1975), Harlan v. Roadtrek Motorhomes, Inc., 2009 WL 928309 at *8 (S.D. Cal. Apr. 2, 2009).

  10. In re: HP Power Plug and Graphic Card Litigation

    Memorandum in Opposition re First MOTION to Dismiss Second Amended Complaint

    Filed January 12, 2007

    See SAC ¶ 49. While there is room to debate whether California dispensed with the privity requirement in actions for breach of express warranty (compare Seely v. White Motor Company, 63 Cal. 2d 9, 14 (1965) (“Since there was an express warranty to plaintiff in the purchase order, no privity of contract was required.”) and Hauter v. Zogarts, 14 Cal. 3d 104 n. 8, 115 (1975) (“Privity is not required for an action based upon an express warranty.”) with Cellars v. Pacific Coast Packaging, Inc., 189 F.R.D. 575, 580 (N.D. Cal. 1999)(“[T]he Court concludes that privity of contract remains a requirement in express warranty actions.”))