*1084 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS FIRST AMENDED CONSOLIDATED COMPLAINT
Prеsently before the Court is Defendants’ motion to dismiss Plaintiffs’ First Amended Consolidated Complaint (“FACC”) pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 9(b), brought by Defendants Sony Corporation of America (“SCA”), Sony Electronics Inc. (“SEI”), and Sony Corporation (“SC,” and collectively, “Sony” or “Defendants”). Doc. No. 52. Plaintiffs have opposed the motion, Doc. No. 55, and Defendants have replied to that opposition. Doc. No. 56. Both parties appeared before the Court for oral argument on November 8, 2010. For the reasons stated herein, the Court GRANTS WITH PREJUDICE Defendants’ motion to dismiss.
FACTUAL BACKGROUND
This case is a putative class action. Plaintiffs are a group of individuals who purchased and used Sony Grand WEGA KDF-E A10 and A20 Series televisions that were manufactured by Defendants and offered for sale beginning in the second half of 2005 (“2005 Models” or “televisions”). Sony marketed the televisions as offering superior picture quality to that of standard televisions and being capable of taking full advantage of High-Definition Television (“HDTV”) programming. 1 Plaintiffs paid $2,500 or more for the televisions.
Sony expressly warranted the televisions for one year. The express, limited warranty (“Express” or “Limited Warranty”) provided that, at thе conclusion of the one-year Express Warranty period, all express and implied warranties would be waived. 2
At sometime after the Express Warranty period ended, the televisions began to display anomalies, including bright blue, yellow, and green spots, stains, and haze. Those anomalies were allegedly caused by a defect inherent in the LCD rear-projection technology utilized in the televisions’ “optical block” — the component part of the televisions that causes the video signal to be displayed as a picture on the viewing screen. Replacing an optical block in the 2005 Model televisions costs approximately $1,500, including labor. Plaintiffs claim they requested that Sony, free of charge, repair the optical blocks in the malfunctioning televisions. However, because the alleged defect did not manifest itself until after the warranty expired, Sony refused to repair the problem at no cost.
PROCEDURAL HISTORY
Nearly two years and four complaints after its inception, this matter lingers in *1085 the pleading stage. 3 Plaintiffs filed the original complaint on December 8, 2008, which was initially assigned to Judge Whelan.
Sony moved to dismiss the original complaint. Docket No. 4. The parties thereafter agreed that if Defendants withdrew that motion then Plaintiffs would file an amended complaint. Doc. No. 7. Plaintiffs filed their First Amended Complaint on February 18, 2009, Doc. No. 8, and Sony filed a second motion to dismiss on March 20, 2009. Doc. No. 12. Plaintiffs’ counsel filed two other related actions in this court: (1) Bolton et al. v. Sony Corp. of America, Inc., et al., No. 09-CV-0620, on March 25, 2009, and (2) Bashore, et al. v. Sony Corp. of America, Inc., et al., No. 09-CV-0736, on April 10, 2009. Soon thereafter, Plaintiffs moved to consolidate all three actions. Doc. No. 17. On July 30, 2009, the Court granted Plaintiffs motion to consolidate and denied Sony’s then-pending motion to dismiss as moot. Doc. No. 25.
On August 14, 2009, Plaintiffs filed a Consolidated Complaint alleging eight causes of action against Defendants. Doc. No. 26. In short, Plaintiffs allege that Sony knew about the defect in the optical block at the time the televisions were sold, making the televisions defective upon delivery. Defendants responded by filing a motion to dismiss on September 3, 2009. Doc. No. 27.
Judge Whelan stayed the case on October 28, 2010, pending the outcome of a referral to the Judicial Panel on Multidistrict Litigation. Doc. Nos. 32 & 37. Judge Whelan lifted the stay on November 17, 2010, Doc. No. 37. On February 2, 2010, Plaintiffs moved to consolidate a third related case filed in this Court— Mayer v. Sony Corp. of America, Inc., et al., No. 09-CV-2703— with the previously consolidated cases and to appoint interim counsel. Doc. No. 38. Judge Whelan granted those motions. Doc. No. 48.
The parties later filed a joint motion to strike three paragraphs of the complaint regarding confidential sources at Sony, which Judge Whelan granted. Doc. Nos. 40 & 41.
On August 6, 2010, the Court granted-in-part and denied-in-part Defendants’ motion to dismiss, and dismissed, with leave to amend, seven of Plaintiffs’ eight causes of action. Judge Whelan denied the motion to dismiss the claim for breach of Express Warranty.
On August 12, 2010, the case was reassigned to Chief Judge Gonzalez.
Plaintiffs filed the FACC on August 30, 2010, which sets forth the same eight causes of action included in the first consolidated complaint: (1) Unlawful and Unfair Business Acts and Practices in Violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code §§ 17200-17210; (2) Untrue and Misleading Advertising in Violation of California’s False Advertising Law (“FAL”) Cal. Bus. & Prof.Code §§ 17500-17509; (3) Unlawful Practice in Sale of Consumer Goods in Violation of California Consumers Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750-1784; (4) Unfair and Deceptive Acts and Practices Under the Various State Laws in Which Clаss Members Reside; (5) Violations of California Song-Beverly Consumer Warranty Act (“Song-Beverly Act” or “SBA”), Cal. Civ.Code *1086 §§ 1790-1795.8; (6) Violations of the Magnuson-Moss Warranty Act (“MagnusonMoss Act” or “MMWA”), 15 U.S.C. §§ 2301-2312; (7) Breach of Express Warranty; and (8) Breach of Implied Warranty. Defendants filed the current motion to dismiss all eight of the FACC’s claims on September 9, 2010. 4 Doc. No. 52. Plaintiffs timely filed an opposition to the motion, Doc. No. 55, to which Defendants timely replied. Doc. No. 56.
Plaintiffs’ FACC added two named plaintiffs. One of them is a California resident, bringing the number of named plaintiffs from California to two. Doc. No. 51. Plaintiffs also attempted to strengthen their allegations that Sony was aware of the defect based on (1) certain patent applications filed by Sony and (2) Sony’s experience with earlier-model televisions that Sony began selling in 2003 (“Predecessor Models” or “2003 Models”), which “utilize[d] the same core technology in the design of their Optical Blocks” and experienced problems due to the same defect. Id. ¶¶ 64-66. The remainder of the FACC is identical to the First Consolidated Complaint.
DISCUSSION
I. Legal Standard
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6);
Navarro v. Block,
To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly,
But “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Id.
at 1950. A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.
at 1949 (citing
Twombly,
Complaints alleging fraud must satisfy the heightened pleading requiremеnts of Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. A pleading is sufficient under Rule 9(b) if it “state[s] the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation.”
Misc. Serv. Workers, Drivers & Helpers v. Philco-Ford Corp.,
Regardless of the title given to a particular claim, allegations grounded in fraud are subject to Rule 9(b)’s pleading requirements.
See Vess,
III. Analysis
The Court addresses the sufficiency of each of Plaintiffs’ eight claims below, *1088 largely in the order that they were pleaded in the FACC. Because Plaintiffs’ first four causes of action arise under various consumer protection statutes with similar pleading requirements — California’s UCL, FAL, and CLRA, as well as alternative claims under various other states’ consumer protection statutes — the Court will first address the issues common to those four claims, and will next discuss issues specific to each individual claim. The Court then addresses Plaintiffs’ fifth through eighth causes of action in the order they were pleaded, except that the court addresses Plaintiffs’ sixth cause action, for violations of the Magnuson-Moss Act, last.
For the reasons stated below, the Court GRANTS Defendants’ motion to dismiss each of Plaintiffs’ eight causes of action under Federal Rules of Civil Procedure 12(b)(6) and 9(b). 5 Because it appears to the Court that Plaintiffs cannot amend their complaint to sufficiently state any of their claims, the Court DISMISSES Plaintiffs’ claims WITH PREJUDICE.
A. Plaintiffs’ First Four Causes of Action: Claims Under Various Consumer Protection Statutes.
Plаintiffs’ first four causes of action arise under three California consumer protection statutes — the UCL, the FAL, .and the CLRA — as well as consumer protection statutes from approximately forty other states (“Consumer Protection Statutes”). Plaintiffs’ claims under each of those statutes stem from the same basic allegations: (1) at the time Plaintiffs purchased the televisions, Sony was aware that the televisions’ optical block suffered from a latent defect that would negatively affect the quality of the images displayed by the televisions; (2) despite its awareness of the defect, Sony, in advertisements and other marketing materials, misrepresented the quality of the televisions by claiming they were of “high,” “superior,” and “excellent” quality; that the televisions offered a picture quality far superior to, that offered by standard televisions; and that the televisions were able to take full advantage of HDTV programming and to reproduce video programs with a clear picture and accurate color reproduction; (3) Sony omitted any mention of the defect to consumers; (4) Sony’s claims about the televisions’ quality induced consumers to pay $2,500 or more for the televisions; and (5) rather than function as Sony advertised, the televisions eventually displayed colorful spots and other blemishes that interfered with the picture. Such claims are rooted in theories of fraudulent concealment and fraudulent misrepresentation and therefore must satisfy Rule 9(b)’s heightened pleading requirements.
See Meinhold v. Sprint Spectrum,
*1089
Plaintiffs have failed to plead their Consumer Protection claims with sufficient particularity to satisfy Rule 9(b).
First,
in addition to failures partiсular to each of the specific statutes, the claims under the Consumer Protection Statutes fail because the alleged misrepresentations are nothing more than mere puffery. “Generalized, vague, and unspecified assertions constitute ‘mere puffery’ upon which a reasonable consumer could not rely, and hence are not actionable.”
Oestreicher v. Alienware Corp.,
Plaintiffs in this case have not alleged that Sony made any misstatements about absolute characteristics of the televisions. Instead, Plaintiffs rest their claims on alleged representations that the televisions were of “high” or “superior” quality.
See
FACC ¶¶ 56-58, 71, 74. Such statements are mere puffery and cannot support a claim under the UCL, FAL, or CLRA.
See Oestreicher,
Second,
even to the extent that one might construe any of Sony’s representations as relating to absolute characteristics, Plaintiffs have not sufficiently alleged that those representations were untrue or misleading at the time they were mаde. Plaintiffs have only alleged that the televisions stopped rendering a quality image after some unspecified period of time — but, in any event, not until after the warranty period expired. A manufacturer’s failure to disclose a fact that it has no affirmative duty to disclose cannot be “likely to deceive” reasonable consumers.
See Daugherty v. Am. Honda Motor Co., Inc.,
Furthermore, Plaintiffs have failed to offer sufficiently particularized allegations showing that Sony was aware of the defect when Plaintiffs purchased the televisions. Such allegations would have offered at least some support to the notion that Sony’s representations about the quality of the televisions were false at the time they were made.
Relatedly, it is worth noting that, in dismissing the consumer protection allegations raised under California law in Plaintiffs’ Consolidated Complaint, Judge Whelan highlighted the need for Plaintiffs to specifically allege what Sony knew about the defect at the time that it made the alleged misrepresentations. Doc. No. 48, at 11 (noting the need for specific allegations about Sony’s knowledge of the defect at the time it made the alleged misrepresentations for Plaintiffs’ claims under California consumer protection laws, generally, and then noting the same need for claims under the UCL and FAL, specifically). Plaintiffs’ attempts in the FACC to bolster their claims that Sony was aware of the defect are not sufficient.
Plaintiffs rely heavily on several patent applications filed by Sony between 1998 and 2006. Plaintiffs do not link any of the patent filings to the 2005 Models; nor do the patent filings themselves evince any knowledge of thе defect on Sony’s part. Plaintiffs quote language from the patent applications that discusses certain “disadvantages” of LCD technology, but that language describes the then-current state of LCD technology, generally; it does not show that Sony was aware of any defects specific to any of its televisions, let alone to the 2005 Models.
Moreover, even if the Court were to infer from the patent filings that Sony was aware of a problem with the televisions’ optical blocks, nothing in Plaintiffs’ complaint or in the proffered patent filings indicates the time it takes that problem to cause any deterioration in the images produced by the televisions. In other words, Plaintiffs’ claims suggest that Sony represented that the televisions were of high quality but knew the defect would cause the televisions to falter shortly after the one-year Express Warranty term expired. But Plaintiffs do not specifically allege as much, and nothing in the proffered patent filings indicates whether Sony’s engineers believed the “disadvantages” mentioned would negatively affect the images rendered by the televisions in, for examplе, one, two, ten, or more years.
Plaintiffs’ allegation that Sony’s experience with predecessor models made Sony aware of the defect is similarly unconvincing. Plaintiffs do not allege that the 2005 Models used optical blocks identical to those in predecessor models. They also fail to identify any specific similarities between the optical blocks used in the 2003 and 2005 Models. Nor do Plaintiffs attempt to show that Sony was or should have been aware that any technological advances applied to the 2005 Models would have been insufficient to cure the defect that allegedly plagued the 2003 Models.
In short, for each of their Consumer Protection claims, and despite Judge Whelan’s explicit admonishment on this very issue, Plaintiffs fail provide anything more than conclusory allegations to show that any of Sony’s alleged representations were false or misleading at the time they were made. Those claims fail as a result, and the Court accordingly DISMISSES WITH PREJUDICE Plaintiffs’ first four causes of action. In addition to the flaws common to all of Plaintiffs’ Consumer Protection Claims described above, those claims also fail for reasons specific to each. The Court discusses those failures in the subsections below.
*1091 a. Plaintiffs’ First Cause of Action: Violations of California’s Unfair Competition Law.
California’s UCL, Cal. Bus.
&
Prof. Code §§ 17200-17210, prohibits “any unlawful, unfair or fraudulent business act or practice.”
Id.
§ 17200. Because Section 17200 is written in the disjunctive, it prohibits three separate types of unfair competition: (1) unlawful acts or practices, (2) unfair acts or practices, and (3) fraudulent acts or practices.
Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co.,
i. The Unlawful Prong of the UCL
By proscribing “unlawful” acts or practices, “Section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices independently actionable.”
Id.
at 560-61,
Throughout the FACC, Plaintiffs allege that Sony violated several laws, but they do not link those claims to the UCL except by stating that “Sony’s unlawful and unfair business acts and practices present a continuing threat to plaintiffs .... ” FACC ¶ 94. In their Opposition, however, Plaintiffs expressly claim that Sony violated the “unlawful” prong of the UCL because it violated the CLRA, the Song-Beverly Act, and the MagnusonMoss Warranty Aсt. Pls.’ Opp’n, at 20. As discussed in more detail below, Plaintiffs have failed to state claims under any of those three statutes. Moreover, though Plaintiffs have not linked any of their claims that Defendants violated other laws to the UCL’s unlawful prong, it is worth noting that Plaintiffs have not sufficiently pleaded that Defendants have violated any law. Consequently, Plaintiffs have failed to state a claim under the unlawful prong of the UCL.
ii. The Unfair Prong of the UCL
An act or practice is “unfair” under the UCL “if the consumer injury is substantial, is not outweighed by any countervailing benefits to consumers or to competition, and is not an injury the consumers themselves could reasonably have avoided.”
Tietsworth,
Failure to disclose a defect that might shorten the effective life span of a component part to a consumer product does not constitute a “substantial injury” under the unfair practices prong of the UCL where the product functions as warranted throughout the term of its Express Warranty.
See Clemens v. DaimlerChrysler Corp.,
iii. The Fraudulent Practices Prong of the UCL
The FACC does not explicitly allege violations under the UCL’s fraud prong, but *1092 Plaintiffs argue in their opposition that they have sufficiently pleaded fraudulent practices under the UCL. See FACC at ¶¶ 88-95 (stating a cause of action for “unlawful and unfair business acts and practices,” but only actually alleging “unfair” acts); Pls.’ Opp’n at 19-20 (discussing the UCL’s “fraud” prong).
Unlike common law fraud, a party can show a violation of the UCL’s “fraudulent practices” prong without allegations of actual dteception.
See Morgan,
Nevertheless, claims under Section 17200 that are grounded in fraud still must be pleaded with particularity under Rule 9(b).
See Kearns,
As discussed above, Plaintiffs cannot sufficiently plead reliance because (1) Plaintiffs have not sufficiently pleaded that the alleged representations were false at the time they were made, and (2) the allegedly false or misleading statements were nothing more than non-actionable puffery.
Furthermore, because the alleged misrepresentations in this case do not relate to the claimed defect, Plaintiffs cannot sufficiently plead reliance.
See Daugherty,
*1093
Thus, because Plaintiffs have not sufficiently alleged Sony engaged in conduct likely to deceive consumers, they have failed to state a claim under the fraud prong of the UCL.
b. Plaintiffs’ Second Cause of Action: Violations of California’s False Advertising Law.
Plaintiffs second cause of action is for false advertising in violation of California’s FAL, Cal. Bus.
&
Prof.Code §§ 17500-17509. The FAL proscribes the dissemination of statements that are “untrue, misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” Cal. Bus.
&
Prof.Code § 17500. “This provision has been ‘interpreted broadly to embrace not only advertising which is false, but also advertising which although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.’ ”
Inter-Mark USA, Inc. v. Intuit, Inc.,
No. C-07-04178 JCS,
“The degree of particularity required in pleading a Section 17500 claim depends on the nature of the allegations in the claim. In particular, although fraud is not an essential element of a Section 17500 claim, where a plaintiff alleges fraud as the basis for a violation of that provision, the particularity requirement of Rule 9(b) of the Federal Rules of Civil Procedure applies to the fraud allegations.”
Inter-Mark,
Plaintiffs have failed to identify specific advertisements, when and where they were shown, or why they were untrue or misleading. Whether governed by Rule 9(b) or Rule 8’s more lax pleading standards, Plaintiffs’ failure to identify specific advertisements does not provide Sony with adequate notice of its alleged violations of the FAL.
Inter-Mark,
c. Plaintiffs’ Third Cause of Action: Violations of California’s Consumer Legal Remedies Act.
Plaintiffs third cause of action alleges that, in violation of California’s CLRA, Cal. Civ.Code §§ 1750-1784, Sony failed to disclose information about the defect in the televisions and falsely advertised that the televisions provided high-quality video playback.
As an initial matter, the CLRA requires that, “[i]n any action [under the CLRA], concurrently with the filing of the complaint, the plaintiff shall file an affidavit stating facts showing that the actiоn has been commenced in a county described in this section as a proper place for the trial of the action.” Cal. Civ.Code § 1780(d). If “a plaintiff fails to file the affidavit required by this section, the court shall, upon its own motion or upon motion of any party, dismiss the action without prejudice.” Id. Judge Whalen previously dismissed Plaintiffs’ CLRA claims because of Plaintiffs’ failure to file the statutorily required affidavits with their consolidated complaint. Doc. No. 48, at 12. Yet Plaintiffs have not remedied this issue: of the forty-seven plaintiffs named in the FACC, only one, Mr. Julio Real, has filed the required affidavit. See Declaration of Julio Real Pursuant to Civil Code Section 1780(d), Doc. No. 50; FACC ¶¶5-51 (naming the individual plaintiffs). Accordingly, the Court dismisses the third cause of action filed by all plaintiffs except Mr. Real for their failure to file the required affidavit. Cal. Civ.Code § 1780(d).
Even setting aside the issue of the required affidavits, all Plaintiffs have failed state a claim under the CLRA. Where a manufacturer of consumer goods has expressly warranted a product, the manufacturer cannot be liable under the CLRA for failing to disclose information about a defect that manifests itself outside оf the Express Warranty period, unless (1) the omitted fact runs counter to a representation made by the defendant, or (2) the defendant had a duty to disclose the omitted information.
Oestreicher,
Plaintiffs have not alleged that Sony has made any representations contrary to omitted information about the defect. First, as discussed above, the alleged misrepresentations on which Plaintiffs’ claims rest are non-aetionable puffery. Second, Plaintiffs have not claimed that Sony made any representations that run counter to the allegedly omitted fact: that the televisions’ optical block wore out over time. Plaintiffs have not alleged that the televisions failed to perform as warranted; they instead take issue with — but point to no representations regarding — the televisions’ performance after the expiration of the Express Warranty period. 6
*1095
Nor did Sony have a duty to disclose information about the alleged defect. First, and again, Plaintiffs have not sufficiently alleged that Sony was aware of the defect at the time that Plaintiffs purchased; Sony had no duty to disclose facts of which it was unaware. Second, even assuming that Sony was aware of the defect, under the CLRA, a manufacturer’s duty to disclose information related to defect that manifests itself after the expiration of an Express Warranty is limited to issues related to product safety.
7
Oestreicher,
Plaintiffs, relying on
Falk v. General Motors Corp.,
The
Falk
court found that a failure to disclose can constitute actionable fraud under the CLRA in four circumstances: “(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material fact.”
Materiality under the CLRA “is judged by the effect on a ‘reasonable consumer’ ”; that is, information is material if its disclosure would have caused a reasonable consumer to behave differently.
Falk,
*1096 Common experience supports plaintiffs’ claim that a potential car buyer would view as material a defective speedometer. That a speedometer is prone to fail and to read a different speed than the vehicle’s actual speed, even a difference of ten miles per hour, would be material to the reasonable consumer, driver and passenger. Such a faulty speedometer easily would lead to traveling at unsafe speeds and moving-violation penalties.
Id.
at 1096. Thus, in the context of the CLRA, materiality is also linked to safety considerations.
8
Oestreicher,
d. Plaintiffs’ Fourth Cause of Action: Violations of Various Other States’ Consumer Protection Laws.
Plaintiffs allege violations of the laws of approximately forty states in which various class members reside, stated in the alternative in the event that the Court upholds Plaintiffs’ claims but decides that the laws of one of the states other than California in which Plaintiffs’ reside should apply. Plaintiffs’ claims under these various states’ laws are factually identical, and they are grounded in theories of fraudulent representation and concealment: “By selling the televisions to consumers while concealing and failing to disclose the defect and, without revealing that the televisions were defective when sold and that their screens would eventually be obscured, in whole or in part, by the defect, аnd due to defendants’ improper warranty practices and false and misleading statements to consumers about the existence of, and fix for, the defect, defendants violated [various states’ consumer protection laws].” FACC ¶¶ 109-159.
In a putative class action, the Court will not conduct a detailed choice-of-law analysis during the pleading stage.
See Speyer v. Avis Rent a Car Sys., Inc.,
Again, Plaintiffs’ claims under alternative state laws fail because (1) the representations on which Plaintiffs’ claims rely are non-actiоnable puffery, and (2) Plaintiffs have failed to sufficiently allege that the statements on which the alternative state law claims stand were false when they were made. Moreover, Plaintiffs have failed to state with any particularity “ ‘the who, what, when, where, and how’ of the misconduct charged,” and have thus failed to satisfactorily state a claim under Rule 9(b).
Vess,
B. Plaintiffs’ Fifth Cause of Action: Claims Under the Song-Beverly Consumer Warranty Act.
Plaintiffs claim that Sony breached the implied warranty of merchantability under Sections 1791.1, 1792, and 1792.1 of the Song-Beverly Act by selling televisions containing a latent defect. FACC ¶¶ 161-162. They also claim that Sony violated Sections 1793.2(a)(3) and 1793.2(b) of the SBA by failing to repair or replace the defective televisions within thirty days. Id. ¶¶ 163-164.
The Song-Beverly Act is limited to actions involving “consumer goods that are sold at retail in [California]”. Cal. Civ. Code Cal. Civ.Code § 1792. Courts have routinely dismissed SBA claims against manufacturers where none of the named class members could plead that they purchased the goods “at retail” in California.
See, e.g., In re NVIDIA GPU Litig.,
Judge Whelan previously dismissed this claim for Plaintiffs’ failure to assert that any of the named plaintiffs purchased their televisions in California. Doc. No. 48, at 14;
accord, e.g., Morgan,
Additionally, the SBA places an affirmative duty on сonsumers to deliver a product a malfunctioning product to the manufacturer for repair
within
the Express Warranty period. Cal. Civ.Code Cal. Civ.Code § 1793.02(c) (stating that a seller shall repair or replace a malfunctioning product “[i]f the buyer returns the device
within the period specified in the written
warranty”) (emphasis added);
see also, e.g., Robertson v. Fleetwood Travel
*1098
Trailers of Cal., Inc.,
Accordingly, Plaintiffs’ claims under the Song-Beverly Act are DISMISSED WITH PREJUDICE.
C. Plaintiffs’ Seventh Cause of Action: Breach of Express Warranty.
Plaintiffs claim that Sony expressly warranted that the televisions were free from defects and that Sony breached its Express Warranty of the televisions at the point of sale, even though the defect did not manifest until after the one-year Express Warranty period expired. FACC ¶¶ 171-180.
As an initial matter, Plaintiffs contend that the law of the case doctrine bars the Court from considering Sony’s motion to dismiss their Express Warranty claim because (1) Judge Whelan found Plaintiffs’ pleading sufficient when he ruled on Sony’s motion to dismiss this claim in Plaintiffs’ consolidated complaint, and (2) this claim remains substantively unchanged in the FACC. See Pls.’ Opp’n at 6-7. The Court disagrees, and will consider Sony’s motion to dismiss Plaintiffs’ claim for breach of an Express Warranty.
Judge Whalen maintained Plaintiffs’ breach of Express Warranty claim but dismissed all other claims. Rather than proceed with only the claim for breach of Express Warranty, Plaintiffs chose to file an amended complaint. When Plaintiffs filed the FACC, it superseded their previous complaint, and Sony was therefore free to move again for dismissal.
See, e.g., Ferdik v. Bonzelet,
Moreover, the law of the case doctrine is discretionary, and “is in no way a limit on a court’s power to revisit, revise, or rescind an interlocutory order prior to entry of final judgment in the case.”
City of Los Angeles v. Santa Monica Baykeeper,
“The general rule is that an Express Warranty does not cover repairs made after the applicable time or [other limitations] have elapsed.”
Daugherty,
Every manufactured item is defective at the time of sale in the sense that it will not last forever; the flip-side of this original sin is the product’s useful life. If a manufacturer determines that useful life and warrants the product for a lesser period of time, we can hardly say that the warranty is implicated when the item fails after the warranty period expires. The product has performed as expressly warranted. Claims regarding *1099 other buyer expectations and the manufacturer’s state of mind properly sound in fraud and implied warranty.
Plaintiffs argue that
Hicks v. Kaufman & Broad Home Corp.
establishes an exception to that general rule for products that, at the point of sale, were “substantially cеrtain to result in malfunction during the useful life of the product.”
See
To expand the scope of any exception that may exist under Hicks to the *1100 extent that Plaintiffs request would swallow the general rule that an Express Warranty does not cover repairs that become necessary after the applicable time period has elapsed. The Court declines to do so. Because Plaintiffs have not alleged that the defect presented itself during the Express Warranty period, Plaintiffs’ have failed to sufficiently plead that Sony breached the Express Warranty provided with the televisions. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ Express Warranty claim.
D. Plaintiffs’ Eighth Cause of Action: Breach of Implied Warranty.
Plaintiffs allege that, because the televisions were allegedly defective when sold, Sony violated both the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. FACC ¶¶ 181-188.
Notably, Judge Whelan previously dismissed Plaintiffs’ claim for breach of implied warranties for Plaintiffs’ failure to sufficiently plead vertical privity. Plaintiffs argue that the Song-Beverly Act eliminated the privity requirement under California law. Pls.’ Opp’n at 12-13. While some authority may support Plaintiffs’ argument in the context of a Song-Beverly Act claim,
see Gusse v. Damon Corp.,
To state a claim for breach of an implied warranty, plaintiffs must establish vertical privity with the warrantor.
Arabian v. Sony Elees., Inc.,
Even setting aside the privity requirement, Plaintiffs’ implied warranty claim fails. By limiting the duration of an Express Warranty, manufacturers may impose limits on implied warranties.
Hovsepian v. Apple,
Instead, Plaintiffs argue that Sony’s knowledge of the defect rendered the one-year limitation on the implied warranties *1101 unconscionable, and therefore unenforceable, and that Plaintiffs’ implied warranty claim should survive as a result. Pls.’ Opp’n at 9-11. That argument is unavailing.
First, California law expressly limits, by statute, implied warranties to one year or less (though no less than sixty days). Cal. Civ.Code § 1791.1(c). Thus, because the temporal limit imposed on the implied warranties corresponds to the longest permitted under California law, they are reasonable.
Second, even ignoring that fact, Plaintiffs have not alleged circumstances demonstrating unconscionability. Where plaintiffs allege facts establishing unequal bargaining power such that the weaker party had no meaningful alternative to accepting the powerful party’s terms, an express warranty’s limitation of the duration of implied warranties may be deemed unconscionable.
Carlson v. Gen. Motors Cmp.,
Plaintiffs claim that the limitation on the implied warranties is unсonscionable because Sony knew of but failed to disclose information about the defect when Plaintiffs purchased the televisions. Pls.’ Opp’n at 9-11. But, as discussed above, Plaintiffs have not sufficiently alleged that Sony knew of the defect before the point of sale. As a result, Plaintiffs cannot establish that Sony enjoyed superior bargaining power.
Additionally, any claim of unconscionability — like Plaintiffs’ — based on the notion that one party did not enjoy a meaningful alternative to accepting the powerful party’s terms “may be defeated if the complaining party had reasonably available alternative sources of supply from which to obtain the desired goods or services free of the terms claimed to be unconscionable.”
Tietsworth,
Accordingly, Plaintiffs’ claim for breach of implied warranty is DISMISSED WITH PREJUDICE.
E. Plaintiffs’ Sixth Cause of Action: Violation of the Magnuson-Moss Warranty Act.
Plaintiffs allege that by breaching the express and implied warranties, Sony has violated the Magnuson-Moss Act, 15 U.S.C. §§ 2301-2312. FACC ¶¶ 166-170. The Magnuson-Moss Act provides a federal cause of action for state law express and implied warranty claims.
See
15 U.S.C. § 2301(7);
Steams v. Select Comfort Retail Corp.,
No. 08-2746 JF,
Because Plaintiffs have failed to state any valid claims under state law for breach of express or implied warranties, their MMWA claim must also fail. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs’ claim under the Magnuson-Moss Act.
CONCLUSION
Defendants’ motion to dismiss the First Amended Consolidated Complaint is GRANTED, and the First Amended Con *1102 solidated Complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Notes
. HDTV refers to a method of portraying television images with a high degree of detail and accuracy.
. The Limited Warranty provides, in relevant part:
Sony Electronics Inc. ("Sony”) warrants this Product (including any accessories) against defects in material or workmanship as follows:
1. LABOR: For a period of one (1) year from the date of purchase, if this Product is determined to be defective, Sony will repair or replace the Product, at its option, at no charge, or pay thе labor charges to any Sony authorized service facility. After the Warranty Period, you must pay for all labor charges.
2. PARTS: In addition, Sony will supply, at no charge, new or rebuilt replacements in exchange for defective parts for a period of one (I) year .... After the warranty period, you must pay for all parts costs.
To obtain warranty service, you must take the Product, or deliver the Product freight prepaid, in either its original packaging or packaging affording an equal degree of protection, to any authorized Sony service facility.
. The Court acknowledges that, though Plaintiffs have filed four separate complaints, this is only the second version to receive judicial attention on the merits. Nonetheless, the number of filings in this case, the collateral issues that have arisen with related cases in this and in other Courts, and the length of time that has passed since Plaintiffs initially filed their complaint, have been quite unusual.
. Defendants have also requested that the Court take judicial notice of various documents, Doc. No. 53, and Plaintiffs have not opposed that request. Moreover, Plaintiffs' FACC references each of the documents in question. Good cause appearing, the Court GRANTS Defendants’ request and, pursuant to Federal Rule of Evidence 201, takes judicial notice of the following seven documents:
1. Sony Electronics Inc.'s Limited Warranty Statement for the Sony Grand WEGA KDF-E A10 and A20 Series LCD Rear Projection HDTV Televisions (the "Limited Warranty”);
2. United States Patent Number 6,132,049, "Picture display apparatus and cooling apparatus for optical apparatus," filed September 11, 1998, and issued October 17, 2000;
3. United States Patent Number 7,123,33 B2, "Liquid Crystal Display Device and Liquid Crystal Projector Device,” filed December 4, 2001, and issued October 17, 2006;
4. United States Patent Number 5,757,443, "Transmission-Type Display Device With a Heat-Dissipating Glass Plate External To At Least One Liquid Crystal Substrate,” filed October 11, 1996, and issued May 26, 1998;
5. United States Patent Number 7,535,543 B2, "Liquid Crystal Display Apparatus and Cooling Device,” filed November 29, 2005, and issued May 19, 2009;
6. Sony Electronic Inc.'s Operating Instructions for the Sony Grand WEGA KDF-E A10 and A20 Series LCD Rear Projection HDTV Televisions (the "Operating Instructions”); and
7. Complaint in the action entitled Omerod, et al. v. Sony Electronics Inc., et al., Superior Court of California, County of San Diego, Case No. 37-2009-00085333-CU-BT-CTL, filed on March 16, 2009.
. Because the Court, pursuant to Rules 12(b)(6) and 9(b), finds that Plaintiffs have failed to state any valid claims, it is unnecessary for the Court to address the issues of (1) whether Plaintiffs have standing under Rule 12(b)(1) to seek injunctive relief, or (2) whether Sony Corporation of America, Inc. and Sony Corporation are proper defendants.
. Plaintiffs have attempted present one sentence taken from the over eighty pages of operating instructions that accompanied the televisions — -"[t]o enjoy your TV for years to come and maintain its original picture quality, you should perform periodic maintenance” — as a representation that runs contrary to the omitted facts about the optical block. FACC ¶ 70. Again, such a statement is mere puffery.
Tietsworth,
. To impose on manufacturers a broad duty to disclose such that a plaintiff need only allege disappointed expectations to survive a motion to dismiss claims under the CLRA would render meaningless time and other limitations that manufacturers are permitted to place on Express Warranty periods.
See Hovsepian v. Apple, Inc.,
Nos. 08-5788 JF (PVT), 09-1064 JF (PVT),
. Plaintiffs also rely on
Tietsworth v. Sears,
in which the court found omitted information about an electronic defect in wаshing machines that caused consumers to have to initiate multiple cycles to complete a load of laundry or to pay costly repair bills to be material under the CLRA.
. While the Court does not reach the issue of whether Hicks in fact establishes an exception the general rule under Daugherty in any context outside of consumer goods, the Court does note that (1) Daugherty was decided five years after Hides, and (2) Hicks, unlike Daugherty, did not address a motion to dismiss or demurrer, but the very different procedural question of class certification.
. Moreover, the
Hicks
plaintiffs brought their action
before
the relevant express warranty period' — ten years in that case — had actually expired; the issue of whether a manufacturer might face liability for a defect that manifests itself outside of the express warranty period arose because some members of the putative class had not yet suffered actual property damage but sought immediate repairs to prevent damage to the foundation of their homes.
See Hicks,