ORDER GRANTING MOTION TO DISMISS
Plaintiff Daniel Donohue (“plaintiff’), on behalf of himself and a class of similarly situated consumers, asserts claims against defendant Apple, Inc. (“Apple”) related to a defect in the Apple iPhone that caused its “signal meter” to inaccurately reflect the strength of the device’s cellular network connection. Apple moves to dismiss the First Amended Complaint (“FAC”) under Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 9(b). For the reasons below, the court grants Apple’s motion. With the exception of plaintiffs California law-based warranty claim and claim for restitution, which are dismissed with prejudice, the court dismisses all claims with thirty days’ leave to amend.
I. BACKGROUND
The Apple iPhone is a wireless “smart-phone” that enables users to make phone
A. The iPhone Signal Meter and User Guide
The iPhone signal meter consists of a graphic showing one to five “bars.” Id. The number of bars appearing at any given time purports to correspond to the strength of the phone’s connection to the wireless network. Id. When the iPhone has no network connection, the bars are replaced with the phrase: “No Signal.” Id. ¶ 21. The iPhone signal meter is “prominently” displayed in the upper left hand corner of the screen at virtually all times while the device is in use. Id. ¶ 18.
The iPhone “User Guide” is an instructional manual that describes the product’s “capabilities, specifications and functionality.” Id. ¶20. An online version of the User Guide “eome[s] with the purchase” of an iPhone. Id. The User Guide “indicates that the signal meter ... ‘shows whether you’re in range of the cellular network and can make and receive calls.’ ” Id. ¶ 21. For example, the User Guide instructs consumers who are having trouble making a phone call or accessing an internet website to “Check the cell signal icon in the status bar at the top of the screen. If there are no bars, or if it says ‘No Service,’ try moving to a different location. If you’re indoors, try going outdoors or moving closer to a window.” Id. ¶¶ 22-23.
B. Flaw in the iPhone Signal Meter
Cell phone signal meters employ various formulas to calculate how many bars to display for a given signal strength. Id. ¶ 46. While some smartphone manufacturers incorporate formulas recommended by wireless network providers, Apple opted to use its own “secret” formula in its design of the iPhone signal meter. Id. ¶¶ 32, 45, 46. In developing this formula, Apple conducted testing in “anechoic chambers where no waves (sound or electromagnetic) can reflect off anything, so there is absolutely no interference.” Id. ¶ 34. Apple concealed its use of this testing process, which “manifests an artificial environment for signal strength.” Id. Apple also spent less time testing the iPhone than other smartphone vendors before releasing the product. Id. ¶ 33. As a result of these alleged inadequacies, the formula underlying the iPhone signal meter was flawed, and often “misled consumers as to the quality of their connection by inflating the apparent strength-of-connection beyond the actual strength-of-connection.” Id. ¶ 25.
On July 2, 2010, after receiving a “flurry of complaints” about the recently released iPhone 4, id. ¶ 37, Apple issued a public letter addressed to “iPhone 4 Users” (the “July 2 Letter”). See Dkt. No. 31-1. The July 2 letter indicated that “the formula we use to calculate how many bars of signal strength to display is totally wrong ... For example, we sometimes display 4 bars when we should be displaying as few as 2 bars.” Id. The letter further acknowledged that the “mistake” had been present since the release of the original iPhone. Id. “To fix this,” the letter stated, “we are adopting [wireless provider] AT & T’s recently recommended formula for calculating how many bars to display for a given signal strength.” Id. Apple assured consumers that a free software update incor
C. Plaintiffs iPhone Purchase and Related Harms
Plaintiff purchased an iPhone at an Apple retail store in Seattle, Washington in January 2010. Id. ¶ 51. At the time of his purchase, the sample iPhone displayed at the store “appeared” to accurately represent signal strength. Id. After his purchase, plaintiff used the iPhone signal meter to provide him with information about whether he could expect to rely on a signal when making or answering calls and using email or the internet. Id. ¶ 52. He asserts that he experienced “dropped” calls that he did not expect to be dropped, and that he would have “refrained from making such calls or expected a higher likelihood of such calls being dropped if he had known that his connectivity was less that was apparent on the iPhone display.” Id. ¶ 54.
According to plaintiff, the defective nature of the iPhone signal meter, which “substantially inflate[ed] customer perception of signal strength,” would be “important to know [about] in deciding [whether] to purchase [an] iPhone or return it within 30 days after purchase,” the period during which consumers can return the device for a full refund. Id. ¶¶ 60, 29. Plaintiff claims that he had been “seriously considering buying a competing phone before electing to purchase his iPhone,” and that knowledge of the iPhone’s signal meter flaw would have “materially affected” his decision to purchase the iPhone or return it within 30 days. Id. ¶ 60. Plaintiff claims that his lack of knowledge was a consequence of Apple’s failure to disclose information that the company knew, or reasonably should have known, would be of interest to potential iPhone purchasers. Id.
Plaintiff also alleges that the value of an iPhone that inaccurately reports signal strength is less than the value of the same iPhone without the flaw. Id. ¶ 57. In addition, plaintiff claims that the strength-of-signal flaw diminished the resale value of any iPhone purchased prior to July 14, 2010. Id. ¶ 61. Finally, plaintiff notes that because the software update could only be installed on the iPhone 3G, 3GS and 4G models, consumers with older models were left “without a ‘fix’ for the signal strength flaw.” Id. ¶ 50.
D. Procedural Background and Class Allegations
On November 3, 2011, plaintiff filed the instant action on behalf of (1) himself; (2) a class of “all persons who purchased an iPhone at retail in the United States at any time on or before July 14, 2010” (the “class”); and (3) a subclass of “all persons who purchased an iPhone at retail in the State of Washington at any time on or before July 14, 2010” (the “Washington subclass”). Id. ¶ 9. The FAC, which forms the operative pleading for purposes of this motion, alleges claims for (1) breach of contract and the duty of good faith and fair dealing; (2) breach of implied warranty; (3) breach of express warranty; (4) violations of the Magnuson Moss Warranty Act (“MMWA”); (5) violations of Cal. Bus. & Prof.Code § 17200 (“UCL”); (6) violations of the Consumer Legal Remedies Act (“CLRA”); (7) violations of the Washington Consumer Protection Act (“WCPA”); and (8) restitution.
A. Standing
1. Plaintiffs standing to bring claims on his own behalf
Apple first argues that plaintiff lacks standing to sue because the defective performance of the iPhone signal meter did not cause him any cognizable injury. In order to confer standing under Article III of the federal constitution, a plaintiffs injury must constitute “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife,
Standing to sue under the UCL requires plaintiff to demonstrate that he or she has personally suffered “economic injury.” Kwikset Corp. v. Superior Court,
Apple contends that because the iPhone signal meter only “reports” the strength of the network signal but does not affect the “actual signal strength, the iPhone’s performance, or its call quality,” the signal meter cannot cause economic injury. Dkt. No. 33 at 1. Apple compares the signal meter to a gauge on a car that displays ambient air temperature but has no impact on the weather outside, and thus no real effect on the car’s driver. As Apple sees it, plaintiffs ability to use his iPhone “was what it was ... irrespective of how the signal meter read.” Id. at 7.
Plaintiff proposes a different automobile-related analog: the fuel gauge. According to plaintiff, “in both cases, the consumer is directed to the readout to acquire information about the product’s status and utility, information they need to use the product for the purpose for which they bought it.” Dkt. No. 40 at 3. By plaintiffs logic, an iPhone with no network connection while the signal meter shows two bars is like a car that runs out of gas while the fuel gauge indicates that the tank is still forty percent full. Therefore, he claims that his iPhone was less valuable as a result of the signal meter defect, and that he and the other class members suffered economic injury in the form of “lost money or property, including [the] reason
Although both analogies suffer shortcomings, the court finds plaintiffs arguments and cited authorities more persuasive. A defective signal meter clearly has some impact on a user’s experience with his iPhone — he might choose to make an important call based on the meter’s readout only to have it inexplicably dropped or waste time moving from place to place in a quixotic search for “more bars.” Thus, even if the signal meter cannot cause a dropped call or a slow download, a consumer faced with the choice of whether to purchase an iPhone with an accurate signal meter or an inaccurate signal meter would unquestionably choose the former. It is therefore reasonable to infer that a consumer who unknowingly buys an iPhone with a defective signal meter “acquires in a transaction less” than he or she would have absent the defect. Kwikset,
Apple’s attempt to distinguish Kearney and Trew on the basis that those cases concern “safety hazards” is unavailing. While a product defect that causes a safety hazard is certainly more likely to give rise to an actionable injury, neither the UCL nor Article III requires a plaintiff to show that his health has been put at risk to get through the courthouse doors. After all, injury for standing purposes is not a question of degree or genre, but of concreteness. See Council of Ins. Agents & Brokers v. Molasky-Arman,
In addition, the California Supreme Court has clearly held that allegations of fraud and misrepresentation may support diminution in value claims even where safety hazards are not at issue. See Kwikset,
The FAC also satisfies the requirement that plaintiff show that Apple caused the injury in question. In establishing causation in the context of a consumer protection claim, “it is not ... necessary that [the plaintiffs] reliance upon the truth of the fraudulent misrepresentation [or omission] be the sole or even the predominant or decisive factor in influencing his conduct. ... It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision. Moreover, a presumption, or at least an inference, of reliance arises wherever there is a showing that a misrepresentation was material.” In re Tobacco II Cases,
2. Plaintiffs standing to bring claims on behalf of purchasers of iPhone models that he did not purchase
While the FAC does not specify which iPhone model plaintiff purchased in January 2010, he concedes that he has only ever owned two models. See FAC ¶ 51. Apple contends, and plaintiff does not dispute, that based on the timing of his purchase, he did not buy the iPhone 4. Apple argues that plaintiff therefore lacks standing to bring claims on behalf of purchasers of that product and other models he has never owned. See Dkt. No. 33 at 8. In response, plaintiff contends that Apple’s argument concerns not standing but the dimensions of the putative class, and should be addressed on a motion for class certification.
Courts in this circuit have diverged on the question of whether a named plaintiff has standing to sue on behalf of purchasers of a product that he or she did not purchase. Compare Johns v. Bayer Corp.,
This court respectfully disagrees with Mlejnecky’s characterization of Kwikset, and finds that plaintiff has standing to assert claims on behalf of purchasers of other iPhone models. While Kwikset clarified the economic injury requirement for standing under the UCL, it did not purport to address whether a plaintiff who has suffered such an injury could represent a class of individuals who purchased distinct but similar products. Indeed, shortly before issuing its decision in Kwikset, the California Supreme Court explained that “representative parties who have a direct and substantial interest have standing; the question whether they may be allowed to present claims on behalf of others who have similar, but not identical, interests depends not on standing, but on an assessment of typicality and adequacy of representation.” In re Tobacco II Cases,
Furthermore, unlike in Johns, plaintiff here does not allege injury based solely on Apple’s alleged misrepresentations, but on the diminution in value resulting from the product defect itself, which Apple has already admitted existed in every iPhone model at issue in this case. Thus, “if certification' is granted, the proposed class would contain plaintiffs who have personal standing to raise [the] claims [advanced by plaintiff].” In re Buspirone Patent & Antitrust Litig.,
B. Assertion of Claims under California Law Arising from a Washington-Based Transaction
Apple next argues that under Mazza v. Am. Honda Motor Co.,
Although Mazza may influence the decision whether to certify the proposed class and subclass, such a determination is premature. At this stage in the litigation— before the parties have submitted briefing regarding either choice-of-law or class certification — plaintiff is permitted to assert claims under the laws of different states in the alternative. See, e.g., In re Sony Grand WEGA KDF-E A10/A20 Series Rear Projection HDTV TV Litig.,
C. Fraud-Based Claims
Apple’s third contention is that plaintiffs fraud-based “consumer protection claims” — specifically, his claims under the UCL, CLRA and WCPA — must be dismissed for failure to comply with Fed. R.Civ.P. 9(b).
Rule 9(b) requires that when fraud is alleged, “a party must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). If fraud is not an essential element of a claim, “only those allegations of a complaint which aver fraud are subject to Rule 9(b)’s heightened pleading standard.” Kearns v. Ford Motor Co.,
The parties do not seriously dispute whether claims based on Apple’s alleged misrepresentations or omissions concerning the performance of the iPhone signal meter are subject to the requirements of Rule 9(b).
1. Affirmative misrepresentation claims
A plaintiff asserting causes of action for fraudulent misrepresentation under the UCL, CLRA or WCPA must allege that he was exposed to a particular representation that is claimed to be deceptive. See, e.g., Baltazar v. Apple, Inc.,
Plaintiff contends that his misrepresentation claim is “not predicated on written misrepresentations,” but rather on the fact that his iPhone and the iPhone displayed at the Apple store at the time of his purchase “appeared to work and represent signal strength properly even though it was misrepresenting the signal strength via depictions of the number of bars on the [signal meter].” Dkt. No. 40 at 8; FAC ¶ 147. Plaintiff argues that “nothing in the UCL, CLRA or WCPA appears to preclude visual misrepresentations, which can underpin claims of deceptive conduct.” Dkt. No. 40 at 8.
Plaintiff overstates the scope of the consumer protection laws at issue. While it is true that such statutes prohibit the promulgation of misleading “statements] or representation[s],” Goldsmith v. Allergan, Inc., No. 09-7088 PSG,
Furthermore, plaintiffs allegations regarding the “sample iPhone display at the Apple store” fail to meet the requirements of Rule 9(b). See FAC ¶ 147. Plaintiff does not indicate what the signal meter on the display depicted; he alleges only that the signal meter “appeared ... to work ... properly.” Id. Nor does plaintiff allege that he relied on the information conveyed by the display’s signal meter in making his purchase. Such allegations are insufficient to support a claim for fraudulent misrepresentation. See Kearns,
Accordingly, the court grants Apple’s motion to dismiss claims under the UCL, CLRA and WCPA based on alleged affirmative misrepresentations. As plaintiff may be able to identify an affirmative misrepresentation concerning the iPhone signal meter, dismissal is granted with leave to amend.
2. Omission claims
To be actionable, an omission must be “contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” Baltazar,
Here, plaintiff claims that Apple failed to disclose on the “product packaging, via point of sale literature, at Apple retail stores, and otherwise ... that the iPhone [signal meter] was unreliable, incorrect, defective, and ... that it was based on a faulty, an unverified and/or inflated formula, [and] that it was designed to depict inflated signal strength.” FAC ¶¶ 148-49. Apple does not appear to dispute that the defect in the iPhone signal meter is material; that is, “had the omitted information been disclosed, one would have been aware of it and behaved differently.” Falk,
a. Duty to disclose
Plaintiff argues that his allegations are sufficient to meet both the “exclusive knowledge” and “active concealment” requirements to trigger a duty to disclose. Plaintiff points to assertions that Apple conducted its signal meter testing and development in “secret,” FAC ¶ 32, and that “Apple was solely in control and responsible for determining what the [signal meter] would display, how it worked, and what customers were told about how to use it.” FAC If 70. He also alleges that “unlike makers of other cell phones, Apple programmed its iPhones so as to prevent users from tampering with the hardware and/or software, which further inhibited Plaintiff and the Class from learning about the ... defect.” Id ¶ 44.
Apple first responds that it did not conceal “exclusive” knowledge because “if plaintiff experienced issues with his iPhone’s ... reception ... he knew it; the signal meter could not disguise his actual experience.” Dkt. No. 43 at 14. But while plaintiff may have known that he was having reception problems, it does not follow that he knew his iPhone’s signal meter was defective. Unlike the driver of a car with a defective ambient temperature gauge who can put his hand outside the window to determine what the weather is like, a cell phone user has no way to ascertain the “true” strength of his network connection and deduce that his signal meter is inaccurate. Moreover, plaintiff specifically alleges that because Apple effectively prevented consumers from “tampering with” iPhone software, they could not have discovered the signal meter’s latent flaw. Plaintiffs allegations thus demonstrate that Apple “was in a superior position to know” about the defect. Falk,
Apple next relies on a series of cases rejecting duty to disclose claims based on product defects that manifested themselves after the expiration of a manufacturer’s express warranty. See Wilson,
.By contrast, plaintiff here alleges that his iPhone failed to perform as expected from the moment he purchased it. This case therefore does not raise similar policy concerns regarding potential conflicts between a manufacturer’s right to limit its liability under warranty and its duty to disclose known defects. Consequently, the court finds Apple’s cited authorities materially distinguishable. See Baba v. Hewlett-Packard Co., No. 09-05946 RS,
Finally, Apple argues that plaintiff has failed provide more than “bare legal conclusions” regarding Apple’s knowledge of the signal meter’s flaw. Dkt. No. 33 at 14 n. 7. In order to give rise to a duty to disclose, a complaint must contain specific allegations demonstrating the manufacturer’s knowledge of the alleged defect at the time of sale. See Baba,
Whether plaintiff has demonstrated that Apple knew of the alleged defect when he purchased his iPhone in January 2010 is a close question. On one hand, Apple publicly acknowledged in the July 2 letter that “the mistake has been present since the original iPhone.” Dkt. No. 31-1. Plaintiff asserts that the meter was specifically designed to overstate signal strength in order to give Apple a competitive advantage. See FAC ¶ 71-72. It could therefore be inferred that Apple knew of the signal meter defect before July 2010, and disclosed the flaw at that time only because the widespread reports of reception problems had begun to hurt sales. On the other hand, the FAC and the July 2 letter both indicate that Apple’s investigation into potential problems with the iPhone signal meter was initiated in response to complaints about the iPhone k, which was not released until after plaintiffs purchase. See FAC ¶ 33; Dkt. No. 33-1. Plaintiff points to no complaints, data or other information about pre-iPhone 4 models that would have put Apple on notice that such models were similarly defective. Compare Falk,
D. Non-Fraud Based UCL Claims
In addition to fraud-based claims, plaintiff asserts claims under the “unfair” prong of the UCL based on Apple’s “substandard and insufficient” design and testing of the iPhone signal meter. FAC ¶ 140. “California courts have not yet determined how to define ‘unfair’ in the consumer action context.” Lozano v. AT & T Wireless Servs.,
Here, it is hard to see how Apple’s choice to develop its own formula in designing the iPhone signal meter could be characterized as “immoral, unethical, oppressive or unscrupulous.” Many of Silicon Valley’s greatest innovations have resulted from decisions to reject the status quo in favor of new approaches to old problems. Without any facts supporting plaintiffs conclusory claim that Apple knowingly or purposefully designed the iPhone signal meter to artificially inflate apparent signal strength, the court is loath to pass judgment on a design decision that is clear only in hindsight to have been a mistake. Indeed, as plaintiff cites no authority finding that a product design alone can constitute unfair conduct without related misrepresentations or omissions, the court is not even certain that the UCL is applicable to the allegations at hand. In addition, while plaintiff claims that Apple’s conduct was “contrary to industry standards,” it cites no specific evidence — such as the testing processes or formulas used by other smartphone vendors — supporting this proposition. Accordingly, the court grants Apple’s motion to dismiss plaintiffs claims under the “unfair” prong of the UCL with leave to amend.
E. Warranty Claims
1. Pre-suit notice
Plaintiffs breach of express warranty claim is based on the allegation that the User Guide falsely promised that the signal meter would accurately depict signal strength. See FAC ¶ 112. His implied warranty claim alleges that “faulty signal meters rendered [class members’] phones unfit for ordinary use.” FAC ¶ 107. Plaintiff also asserts a claim under the federal Magnuson Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301-12, based on the same alleged breaches. FAC ¶ 124.
Apple argues that each of plaintiffs warranty claims must be dismissed because he did not provide notice of the alleged breaches until December 5, 2011, more than one month after the filing of plaintiffs original complaint.
a. Warranty claims asserted under California law
To avoid dismissal of a breach of warranty claim in California, “[a] buyer must plead that notice of the alleged breach was provided to the seller within a reasonable time after discovery of the breach.” Alvarez v. Chevron Corp.,
Plaintiff contends that Alvarez is inapplicable here because while he did not provide notice before filing suit, Apple was notified of its alleged breach before he filed his amended complaint, in which he asserted warranty claims for the first time. Plaintiff argues that barring his claims under these circumstances would preclude aggrieved parties from bringing warranty claims based on facts identified after the filing of an initial complaint. He further implies that dismissing claims asserted for the first time in an amended complaint would frustrate the purposes of Fed. R.Civ.P. 15, which provides for the filing of amended and supplemental pleadings.
Although plaintiffs position has some appeal, it is unavailing here. First, the Alvarez court rejected a similar argument by expressly overruling Hampton v. Gebhardt’s Chili Powder Co.,
b. Warranty claims asserted under Washington law
Washington law similarly requires a plaintiff asserting a claim for breach of warranty to plead that notice has been given within a “reasonable time” after discovering the alleged breach. See Rev. Code Wash. § 62A.2-607; Kasey v. Suburban Gas Heat,
c. Warranty claims under federal law
The notice requirement applies with equal force to claims brought under the MMWA. See Birdsong v. Apple, Inc.,
F. Contract Claims
1. Breach of express contract
In order to state a claim for breach of contract, a plaintiff must plead the existence of a contract, his performance of the contract or excuse for nonperformance, the defendant’s breach and resulting damages. Otworth v. Southern Pac. Transportation Co.,
Here, plaintiff alleges that “the contract for the purchase of the iPhone[ ] included a promise to provide a working signal meter.” FAC ¶ 89. Plaintiff claims that such a promise is implied by the facts that: (1) the User Guide indicates “that the signal meter ... can be properly used to trace whether the user is within sufficient range of the cellular network;” and
Apple argues that the User Guide is merely an instruction manual, and therefore does not give rise contractual obligations. The court agrees. A review of the User Guide shows that it provides directions for using an iPhone and descriptions of the device’s functions, but includes no “promises” which plaintiff could have “accepted.” See Dkt. No. 34-1, Ex. A; Donovan v. RRL Corp.,
Plaintiffs cited aúthorities — in addition to being non-binding on this court — are factually distinguishable from the case at hand. For example, in Kaiser-Flores v. Lowe’s Home Ctrs., Inc., No. 08-45-V,
The court also finds unpersuasive plaintiffs contention that because the User Guide expressly disclaims liability for the performance of third-party applications, Apple implicitly accepted liability for any defect in the performance of its own technology. See Dkt. No. 34-1, Ex. A at 217. Simply put, limiting liability for certain defects does not automatically render a manufacturer liable for all other defects.
Plaintiffs other argument — that the ostensibly functioning iPhone on display at the Apple store, establishes the existence of a contract — is not supported by any authority at all. As noted above, plaintiff has not explained what the display iPhone
Accordingly, the court concludes that Apple did not breach an express term of its contract with plaintiff by failing to provide him with an iPhone containing a working signal meter. However, because plaintiff may be able to allege facts showing the existence and breach of such an obligation, the court dismisses plaintiffs breach of contract claim with leave to amend.
2. Breach of implied covenant of good faith and fair dealing
“Every contract contains an implied covenant of good faith and fair dealing that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” Wolf v. Walt Disney Pictures and Television,
Plaintiffs breach of the implied covenant claim is premised solely on the argument that the User Guide created an express obligation to provide him with a working signal meter. See Dkt. No. 40 at 19. As the court has rejected this argument in dismissing plaintiffs contract claim, plaintiffs breach of the implied covenant claim is also dismissed with leave to amend.
G. Restitution Claim
Under California law, restitution and unjust enrichment are generally thought of not as causes of action, but “general principle^] underlying various legal doctrines and remedies.” McBride v. Boughton,
Here, plaintiff indicates that his restitution claim is based on Apple’s alleged fraud, and is pleaded in the alternative to his breach of contract claims. The court agrees that if plaintiff prevails on his consumer protection claims but not under a contract theory, he may seek recovery in the form of restitution. See, e.g., Nordberg,
III. ORDER
For the foregoing reasons, the court grants Apple’s motion to dismiss plaintiff’s claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of warranty under Washington law and the MMWA, violation of Cal. Bus. & Prof. Code § 17200, violation of the CLRA, violation of the WCPA, and restitution under Washington law with leave to amend. Any amended pleading must be filed within thirty days of the date of this order. Plaintiffs claims for breach of implied and express warranty under California law are dismissed with prejudice.
Notes
. It is not clear from the complaint or Apple's responsive briefing how many different iPhone models included the flawed signal meter.
. Apple does not argue that any additional injury is required for standing under the WCPA or CLRA. The court will therefore infer that if plaintiff has standing to sue under the UCL, he has standing to bring his other claims as well.
. The court remains extremely skeptical about plaintiff's ability to prove diminution in value damages, particularly for purchasers of the iPhone 3G, 3GS and 4G for whom Apple's software update "fixed” the alleged defect. However, as Apple has not raised this issue as an obstacle to standing, the court will assume as true plaintiff's allegation that he will be able to calculate diminution in value damages for all class members. See Cole v. GMC,
. Plaintiff contends that under Faigman v. AT & T Mobility LLC, No. 06-04622 MHP,
. The Wilson court further noted that courts have generally held that “[a] manufacturer’s duty to consumers is limited to its warranty obligations absent either an affirmative misrepresentation or a safety issue.” Wilson v. Hewlett-Packard Co.,
. Plaintiff does not plead the exact date upon which notice was given. However, he alleges that he notified Apple orally and in writing within a reasonable time after discovering the breach. FAC ¶ 117. The court therefore takes judicial notice of the date of plaintiff's notification letter submitted by Apple under the incorporation by reference doctrine. See Dunn v. Castro,