Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
RONDA ANN BROWNING, еt al., Case No. 20-cv-05417-BLF Plaintiffs, ORDER GRANTING MOTION TO v. DISMISS WITH LEAVE TO AMEND
[Re: ECF 26] AMERICAN HONDA MOTOR CO., INC., et al.,
Defendants.
This putative class action alleges a defect in 2018-2019 Honda Odysseys equipped with a 9-speed automatic transmission (“ZF 9HP Automatic Transmission” or the “Transmission”). Am. Compl. (“FAC”) ¶¶ 1-3, ECF 25. Specifically, Plaintiffs allege the Transmission contains a defect causing “rough, delayed, or sudden shifting or failure to shift; grinding or other loud noises during shifting; harsh engagement of gears; sudden or harsh accelerations/decelerations; and sudden loss of power” in the 2018-2019 Honda Odysseys (“Class Vehicle”). . ¶¶ 7, 14. Before the Court is Defendant American Honda Motor Co., Inc.’s (“AHM”) motion to dismiss. Mot., ECF 26. AHM asserts that the FAC is deficient in several respects. The Court heard oral argument on Defendant’s motion on June 17, 2021 (the “Hearing”). Min. Entry, ECF 50. For the reasons discussed below, Defendant’s motion is GRANTED IN PART WITH LEAVE TO AMEND.
I. BACKGROUND
While Plaintiffs expect an automatic transmission to “start, accelerate, decelerate, and stop immediately in response to the driver’s input,” they claim that the Class Vehicles “operate *2 erratically, causing numerous safety concerns.” FAC ¶ 9. In 2014, AHM began equipping select vehicle models with a 9-speed “automatic” transmission designed to increase fuel economy. Id. ¶ 3. Plaintiffs allege that the improved fuel economy came at a “significant and undisclosed cost: rough and delayed shifting, loud noises during shifting, harsh engagement of gears, sudden, harsh accelerations and decelerations, and sudden loss of power.” Id.
According to Plaintiffs, traditional automatic transmissions use a set of gears that provide a given number of ratios. FAC ¶ 8. The transmission shifts between gears to provide the most appropriate ratio for a given situation. Id. According to Plaintiffs, that normally means the transmission will automatically shift into lower gears for starting, middle gears for acceleration and passing, and higher gears for more fuel-efficient cruising. Id. The ZF 9HP Automatic Transmission allegedly differs from traditional automatic transmissions in that it uses a 9.8 ratio spread, as opposed to 6, which “ideally allow[s] for shorter shifts between gears keeping the engine in a narrow, optimal band of RPMs for as long as possible, and contributing to greater fuel- efficiency.” Id. While the greater-than-average ratio spread of the ZF 9HP Automatic Transmission should allow for shorter shifts between gears and greater fuel efficiency, id . ¶ 8,
17 Plaintiffs allege that the Class Vehicles equipped with the Transmission “contain design defects 18 19 that cause the transmission to exhibit the following: rough, delayed, or sudden shifting or failure tо 20 shift; grinding or other loud noises during shifting; harsh engagement of gears; sudden or harsh 21 accelerations/decelerations; and sudden loss of power,” id . ¶ 7.
22
The FAC explains that the ZF 9HP Automatic Transmission utilizes “dog clutches,” which 23 are more commonly found in manual transmissions. . ¶ 8. These dog clutches in the ZF 9HP
24 Automatic Transmission are engaged by computer software commands from an electronic control 25 unit. . The FAC cites automotive journalist Alex L. Dykes for the following explanation in an 26 27 article about a ZF 9HP 9-speed transmission used in the 2014 Jeep Cherokee (not the Class 28 Vehicle):
*3 The 9HP’s software... [unlike other automatics] responds by cutting power initially, then diving as far down the gear-ladder as it can, engaging the dog clutches and then reinstating your throttle command. The result is a somewhat odd delay between the pedаl on the floor and the car taking off like a bat out of hell. . (alterations in original) (citing Alex L. Dykes, ZF’s 9-Speed 9HP Transmission Puts Dog
Clutches On The Leash , The Truth About Cars (Feb. 8, 2014),
http://www.thetruthaboutcars.com/2014/02/zfs-9-speed-9hp-transmission-puts-dog-clutches-on- the-leash/ (last visited July 8, 2021).
Plaintiffs define the transmission defect in the following way: the Class Vehicles equipped with the ZF 9HP Automatic Transmission contain design defects that cause the transmission to exhibit the following: rough, delayed, or sudden shifting or failure to shift; grinding or other loud noises during shifting; harsh engagement of gears; sudden or harsh accelerations/decelerations; and sudden loss of power (the “Transmission Defect”). FAC ¶ 7. They allege that “the Transmission Defect causes unsafe conditions, including, but not limited to, delayed acceleration, abrupt forward propulsion, and sudden loss of power, which are hazardous because they severely affеct the driver’s ability to control the car.” Id. ¶ 10. Plaintiffs specify that “these conditions may make it difficult to change lanes safely, make turns, merge into traffic, and accelerate from stop at intersections, because Class Members’ vehicles can fail to respond correctly to driver’s input during these normal traffic conditions.” Id.
Plaintiffs are residents of Florida, Ohio, Michigan, South Carolina, Texas, and California that purchased 2018-2019 Honda Odysseys equipped with the Transmission. FAC ¶¶ 22, 44, 54, 65, 77, 87. Plaintiff Ronda Ann Browning (FL), Plaintiffs Divina and Brian Pappas (OH), Plaintiffs Kali and Eric Wescott (MI), Plaintiff Tony Boatwright (SC), Plaintiff Chuen Yong (TX), and Plaintiff Daniel Pina (CA) each allege a similar experience with the Class Vehicles. Each Plaintiff bought a new Class Vehicle in 2018 or 2019 in their respective state of residency. . ¶¶ 23, 45, 55, 66, 78, 88. Within the first few months of purchasing the Class Vehicle or “shortly *4 thereafter,” each Plaintiff other than Mr. Boatwright alleges that their Class vehicle exhibited 1 “harsh or delayed shifting and engagement, delayed accelerations, banging into gear, hesitation, 2 jerking, shuddering, lurching, and lack of power.” Id. ¶¶ 27, 49, 59, 78, 92. Unique to Mr. 3 4 Boatwright is the allegation that his Odyssey would fail to get into gear and accelerate when 5 slowing down and attempting to reaccelerate, lurch when the transmission would get into gear 6 when the engine was revving, and shift and gain too much speed when going downhill Id . ¶ 70. 7
Ms. Browning, Mr. and Ms. Wescott, Mr. Yong, and Mr. Pina each brought their Class Vehicles 8 to an AHM authorized dealership for repairs on multiple occasions after experiencing the alleged
9 performance issues. Id . ¶¶ 29-33, 60-61, 83-84, 93-97. Mr. and Ms. Pappas and Mr. Boatwright 10 11 brought their Class Vehicles to an AHM authorized dealership for repair only once. Id ¶¶ 50, 71. 12 Plaintiffs did not receive any permanent repairs when bringing their Class Vehicles to the AHM 13 authorized dealerships. ¶¶ 29-33, 50, 60-61, 71, 83-84, 93-97. Based on the foregoing, Plaintiffs filed suit against AHM, a California corporation and Defendant Honda Motor Company LTD, a Japanese Corporation. See FAC. Plaintiffs bring eighteen causes of action against Defendants including the following: violation of consumer protection laws of Florida, Ohio, Michigan, South Carolina, Texas, and California; breach of
implied warranty under Florida, Ohio, Michigan, South Carolina, Texas, and California law; breach of express warranty under Michigan, South Carolina, Texas, and California law; a violation of California’s Unfair Competition Law (“UCL”); and unjust enrichment. . ¶¶ 157-439. Each claim is brought on behalf of the Plaintiff residing in the respective state. Id. ¶¶ 158-435. The claims are also brought on behalf оf a proposed nationwide class of individuals that purchased or leased a Class Vehicle, or, in the alternative, a class comprised of the same said individuals residing in the states of the respective state law claims. Id. The only exception is Plaintiffs’ fourteenth cause of action for violation of California’s Consumer Legal Remedies Act, which is *5 brought on behalf of Mr. Pina and the CLRA Subclass comprised of individuals defined as consumers within the CLRA. Id. ¶ 386.
II. LEGAL STANDARD
A. Rule 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a
short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint
that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). In other words, “[a] motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
for failure tо state a claim upon which relief can be granted ‘tests the legal sufficiency of a
claim.’”
Conservation Force v. Salazar
,
In evaluating the complaint, the court must “accept factual allegations in the complaint as
true and construe the pleadings in the light most favorable to the nonmoving party.”
Manzarek v.
St. Paul Fire & Marine Ins. Co.
,
B. Rule 9(b)
In addition, because Plaintiffs’ consumer protection claims are grounded in fraud, the FAC
must also satisfy “the heightened pleading requirements of Rule 9(b).”
Davidson v. Kimberly-
Clark Corp.
,
III. DISCUSSION
A. Request for Consideration of Documents Incorporated by Reference and for Judicial Notice
Generally, a motion to dismiss under Rule 12(b)(6) must rely solely on the contents of the
pleadings. Fed. R. Civ. P. 12(d). There are two exceptions to this rule: the incorporation-by-
reference doctrine, and judicial notice under Federal Rule of Evidence 201.
Khoja v. Orexigen
*7
Therapeutics, Inc.
,
necessarily rely, even if not expressly referenced in the complaint, provided that the authenticity of
those documents are not in dispute.”
Golub v. Gigamon Inc.
,
The incorporation-by-reference doсtrine “applies with equal force to internet pages as it
does to printed material.”
Knievel v. ESPN
,
Regarding the Warranties, Plaintiffs allege that Defendants breached thе “Basic Warranty” and “Powertrain Warranty” that come with the Class Vehicles. FAC ¶¶ 237-262, 290-314, 343- 368, 424-433. The Court finds that these Warranty documents are referred to in the FAC, central to Plaintiffs’ claims, and not subject to questions of authenticity. Accordingly, the Court GRANTS AHM’s request to incorporate these documents by reference into the FAC.
Regarding the Dog Clutch Article, AHM argues that Plaintiffs have selectively quoted
from this article in the FAC,
see
FAC ¶ 8 n.3, to support its claim that the Transmission is
defective, RJN at 2. Specifically, AHM argues that Plaintiffs’ quote about the “somewhat odd
delay between the pedal on the floor and the car taking off like a bat out of hell,” lacks the context
that the author says this happens
when you floor the car
, which is not what Plaintiffs allege to have
done when experiencing the defect. RJN at 2-3. Defendants also argue that Plaintiffs omitted the
author’s conclusion that the shifting sensation experienced by some drivers using the ZF 9HP
makes “perfect sense” despite “feel[ing] different” from less fuel-efficient cars. . at 3. The Court
finds it appropriate to GRANT AHM’s request to incorporate-by-reference the Dog Clutch Article
into the FAC.
In Re Samsung Galaxy Smartphone Mktg. & Sales Pracs. Litig.
, No. 16-CV-
06391-BLF,
The Court also GRANTS AHM’s unopposed request to take judicial notice of the Road and Track Article that is referenced in the FAC, see FAC ¶ 4, which was in the public realm at the *9 time.
B. Failure to Adequately Allege a Defect
AHM first argues that all of Plaintiffs’ claims should be dismissed because all of Plaintiffs’ claims rely on the existence of a defect, and Plaintiffs do not adequately plead a defect. Mot. at 4- 6. Citing the Dog Clutch Article referenced in the FAC, ¶ 8 n.3, AHM argues that the symptoms Plaintiffs describe are not symptoms of a defect but instead are expected side effects of the Transmission’s fuel-efficient design. Mot. at 4-5. AHM further argues that Plaintiffs fail to satisfy Federal Rule of Civil Procedure 8 because Plaintiffs must plead what they believe the defect to be, but instead they have only pled a conclusory allegation that there is a defect and its attendant symptoms. Id . at 5-6. In opposition, Plaintiffs argue that, whether the Class Vehicles are operating as intended is a factual question improperly raised in the Motion. Opp. at 2. Plaintiffs further argue that they sufficiently plead the defect is a malfunction in software and computers controlling the transmissiоn. . at 4. While Plaintiffs correctly assert that whether the Transmission is operating as intended is a question of fact inappropriate for the Court to rule on at this stage of the litigation, the Court agrees with AHM that Plaintiffs have only pled symptoms of a defect and have not given AHM proper notice of what, exactly, it must defend.
To adequately plead a product defect, the Ninth Circuit has generally instructed that a
complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable
the opposing party to defend itself effectively.”
Starr v. Baca
,
In
Pelayo v. Hyundai Motor America, Inc.
, the court held that the plaintiffs failed to
sufficiently plead a defect because they merely pled symptoms of an unspecified malfunction. No.
8:20-cv-01503-JLS,
These issues are the result of a miscommunication among the computers and software which control the engine, throttle and transmission (the “Defect(s)”). Upon information and belief, the Engine Control Module (“ECM”) and the Transmission Control Module (“TCM”) are some of the components involved. The Defect *11 causes unsafe driving conditions and affects Plaintiffs' and other drivers' ability to safely accelerate and maintain speeds while on roads, highways, and freeways. . at *3 (emphasis added). The court in Clark held that the plaintiffs had adequately “identified
the components and systems involved in the alleged defect, and the resulting symptoms of the defect.” .
The pleadings here resemble those in
Pelayo
rather than
Clark
. Like in
Pelayo
, Plaintiffs
here have failed to plead facts beyоnd the symptoms of the alleged defects. The FAC defines the
“Transmission Defect” as “design defects that cause the transmission to exhibit the following:
rough, delayed, or sudden shifting or failure to shift; grinding or other loud noises during shifting;
harsh engagement of gears; sudden or harsh accelerations/decelerations; and sudden loss of
power.” FAC ¶ 7. In the words of the
Pelayo
court, Plaintiffs have pled that Defendants “have
failed to prevent
some
defect in the [engine]” which is “insufficient notice of
what
defect is at
issue.”
In their opposition, Plaintiffs claim the symptoms of the Transmission defect are the result
of improper calibration in the electronic control unit’s software commands that control “dog
clutches” used in the Transmission. Opp. at 4 (citing FAC ¶¶ 7-9, 14). However, no such
allegation is made in the FAC. Paragraphs 7, 8, 9, and 14 of the FAC cited in Plaintiffs’ opposition
simply recite the performance issues experienced by Plaintiffs and describe the mechanics of the
Transmission. FAC ¶¶ 7-9, 14. And the allegation in paragraph 8, taken from the Dog Clutch
Article written about the ZF’s 9HP 9-speed transmission as used in the Jeep Cherokee, cannot
support Plaintiffs defect claims, because this allegation describes what the software and dog
clutches do “when you floor the car,” which is not the activity any Plaintiff alleges. FAC ¶ 8, Dog
Clutch Article at 4-5. While the FAC does reference Technical Service Bulletins (“TCBs”)
regarding software repairs to
other
vehicles equipped with the Transmission, it does not allege a
malfunction in the operation of any software or electronic control unit in the Class Vehicles.
Id
. ¶¶
116-19, 123-24, 130, 132-33. Some of the TCBs in the FAC directed authorized dealers to
perform updates to the Transmission Control Module’s software in the past. . However,
Plaintiffs do not plead that these are the same parts in the Class Vehicles afflicted by the “design
defects that cause the transmission to exhibit” the alleged symptoms. . ¶ 7. Other TSBs
referenced in the FAC address different malfunctions or components related to the Transmission,
including the transmission end cover sealing gasket,
Id.
¶ 120, automatic transmission fluid
*13
temperature sensor,
Id
. ¶ 121, debris in the shifter assembly,
Id.
¶ 122, a transmission case casting
flaw,
Id.
¶ 125, and improperly manufactured transmission warmers,
Id.
¶ 126. Without pleading
the defect with greater specificity, AHM is open to potentially endless discovery regarding each of
these parts and systems. Because this amorphous defect allegation could unfairly subject
Defendant to the expense of prolonged discovery and continued litigation, Plaintiffs have failed
“to give fair notice and to enable the [Defendant] to defend itself effectively.”
Starr
, 652 F.3d at
1216. Further, later in their brief, Plaintiffs explicitly state that “what Plaintiffs have alleged is a
problem with the transmission that could well be caused by a defect in the software or hardware
during manufacture.” Opp. at 10-11. But this argument undermines the notion that the FAC clearly
indicаtes “the result of employing [the] software [controlling the dog clutches] is erratic operation,
delayed acceleration, and the other symptoms of the Defect.” . at 4.
At the Hearing, Plaintiffs identified
Parrish v. Volkswagen Grp. of Am., Inc.
, 463 F. Supp.
3d 1043 (C.D. Cal. 2020) and
Victorino v. FCA US LLC,
In
Victorino
, the plaintiffs alleged that the transmission at issue “contain[ed] a design
defect that caus[ed] the clutch pedal to lose pressure, stick to the floor, and fail to
engage/disengage gears.”
which is prone to corrosion by constant exposure to hydraulic fluid. . (internal citation omitted). The court in Victorino held that the plaintiffs had alleged a sufficiently specific defect that caused the symptoms at issue and therefore they had “provided specific facts to create a plausible inference of a defect in the transmission.” . at *5. Here, Plaintiffs allege no similarly specific cause. Instead, Plaintiffs plead “allegations regarding the subject transmission’s function” without the same level of detail. Opp. at 5. Unlike the plaintiffs in Victorino, who specifically identified the defect as a lack of hydraulic fluid in the slave cylinder resulting from design flaw in the clutch master cylinder, both component parts of the vehicles *15 clutch system, which is in turn part of the vehicle’s transmission, Plaintiffs here generally point to a “design defect” in the Transmission as the cause of their injury. FAC ¶ 7.
In their opposition to the Motion, Plaintiffs further cite
Victorino’s
holding that plaintiffs
need only plead facts to create “a plausible inference of a defect in the transmission.” Opp. at 3
(quoting
Victorino
,
Plaintiffs argue that, unlike the plaintiffs in
DeCoteau
, they have proffered “allegations
regarding the subject transmission’s function.” Opp. at 5. While it is true that Plaintiffs have
proffered allegations regarding the Transmission’s function, they have proffered no allegations
regarding a specific malfunction.
See generally
FAC. Alleging the underlying functions of the
Transmission does not, standing alone, create a plausible inference that the alleged symptoms are
the result of a particular defect therein. Here, Plaintiffs have essentially alleged only “that [a]
Transmission Defect exist[ed] and [was] responsible] (sic) for their vehicles’ symptoms.” Opp. at
5 (alterations in original) (quoting
DeCoteau
,
At the Hearing, Defendant highlighted
In re Ford Motor Co. DPS6 Powershift
Transmission Prod. Liab. Litig.
,
Plaintiffs’ counsel argued at the hearing that
DPS6 Powershift
is distinguishable because
the court was ruling on a motion for summary judgment after a fully developed discovery process.
This is incorrect. First,
DPS6 Powershift
was an order granting the defendant’s motion for
judgment on the pleadings.
As the Court noted at the Hearing, there is some confusion as to whether Plaintiffs are
pursuing a design, manufacturing, or materials defect claim. Without an adequately alleged defect,
that Court cannot definitely rule on the Parties’ arguments regarding the alleged express and
implied warranty claims, as well as the statutory fraud claims, which must meet the Rule 9(b)
particularity pleading standard, and the equitable relief claims, whiсh require Plaintiffs to establish
that they have no adequate remedy at law.
Sonner v. Premier Nutrition Corp.
,
*17 C. Implied Warranty Claims
AHM argues that Plaintiffs’ breach of implied warranty claims fail because they have not
alleged facts showing that the Class Vehicles are unmerchantable, or unfit for sale and ordinary
use. Mot. 7-9. As in
Clark
, it appears Plaintiffs’ breach of implied warranty claims are based on
state statutes adopting UCC § 2–314.
See Clark
,
For Ms. Browning’s specific breach of implied warranty claim under Florida law, Courts
have reached differing conclusions as to whether there is a third-part beneficiary exception to the
contractual privity requirement.
Compare Weiss v. Gen. Motors LLC
,
The Court finds the analysis in
Murphy v. Toyota Motor Sales, U.S.A., Inc.
to be
*18
instructive. No. 2:20-cv-05892,
(Fla. Dist. Ct. App. 2005)). The court in Murphy weighed these cases against another line of cases 8
acknowledging the exception to Florida’s privity requirement in the same context.
Murphy
, 2021
WL 2801452 at *9 (citations omitted). Following a recent decision of the Eleventh Circuit, the
court in
Murphy
held that “[u]nder Florida law, a consumer must enjoy privity of contract with a
supplier to recover for breach of an implied wаrranty.”
Murphy
,
Regarding Mr. and Mrs. Pappas and their implied warranty claims under Ohio law, the
Court finds that privity with the seller is required under Ohio Rev. Code § 1302.27(A).
In re
Porsche Cars N. Am., Inc.
,
For Mr. Yong’s Texas implied warranty claim and Mr. and Mrs. Wescott’s Michigan
*19
implied warranty claim, the Court finds they must properly plead pre-suit notice.
First Reid v.
1
Gen. Motors LLC
,
notice given by any other person. [1]
8
9
D. Express Warranty Claims 10
11
“A manufacturer’s liability for breach of an express warranty derives from, and is
12
measured by, the terms of that warranty. Accordingly, the ‘requirement[s]’ imposed by an express
13
warranty claim are not ‘imposed under state law,’ but rather imposed by the warrantor.”
Clark
,
14
that design defects are not covered by these types of warranties.
See Troup v. Toyota Motor Corp.
,
Additionally, Plaintiffs such as Mr. and Mrs. Pappas and Mr. Boatwright, who only allege
*20
that they brought their Class Vehicles in for repair once,
see
FAC ¶¶ 50, 71, cannot pursue express
warranty claims as currently pled.
See Clark
,
of the concealment or suppression of the fact, the plaintiff sustained
23 damage.
24
Clark
,
27
*21
standard.
Clark
,
As an initial matter, Plaintiffs must distinguish what action AHM took from what action
Defendant Honda Motor Company LTD took in the alleged fraud.
See In re Nexus 6P Prod. Liab.
Litig.
,
Plaintiffs have also not sufficiently alleged that AHM had pre-sale knowledge of any
alleged defect. Since Plaintiffs have failed to adequately plead a defect, they have necessarily
failed to plead exactly what AHM had knowledge of concerning the Class Vehicle. Plaintiffs have
not alleged that AHM was aware of any online complaints, and complaints to the National
Highway Traffic Safety Administration (NHTSA) after the purchase date of the Class Vehicles
*22
cannot support pre-sale knowledge.
In re Nexus
,
3
4
Act (“MCPA”), the Court agrees with Defendants that claims related to “the manufacture, sale,
5
and lease of automobiles” cannot form the basis for a claim under the MCPA.
Cyr v. Ford Motor
6
Co., No. 345751
,
Mich. 950 (2020). Thus, the Court DISMISSES Mr. and Mrs. Wescott’s claim under the MCPA WITH PREJUDICE because any amendment would be futile.
Additionally, the Court finds that Mr. Boatwright’s claim under South Carolina Manufacturers, Distributors, and Dealers Act, S.C. Code Ann. § 56-15-10, et seq. , fails because, according to the statute, “In an action brought pursuant to this article, venue is in the State of South Carolina. A provision of a franchise or other agreement with contrary provisions is void and unenforceable.” Id. § 56-15-140. Accordingly, any amendment of this claim would be futile, and the Court DISMISSES Ms. Boatwright’s claim under South Carolina Manufacturers, Distributors, and Dealers Act WITH PREJUDICE.
F. Equitable Claims
Finally, the Court finds that, since Plaintiffs have not pled that they lack an adequate
remedy at law, all their equitable claims, including those for restitution and prospective injunctive
relief, fail.
See Clark
,
IV. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that AHM’s motion to dismiss is GRANTED. The claims alleging breach of implied warranty under Florida law, a violation of the Michigan Consumer Protection Act, and a violation of the South Carolina Manufacturers, Distributors, and Dealers Act are DISMISSED WITH PREJUDICE. All other claims are DISMISSED WITHOUT PREJUDICE. Plaintiffs may only amend the existing claims of the current parties and shall file an amended complaint within thirty (30) days of the date of this Order.
Dated: July 16, 2021 ______________________________________ BETH LABSON FREEMAN United States District Judge
Notes
[1] The same notice requirement applies to the Texas and Michigan breach of express warranty
28
claims as well.
See Reid
,
[2] Plaintiffs clarify in their opposition brief that they are not pursuing fraud claims based on 28 misrepresentation. Opp. at 14 n.1.