Short v. Hyundai Motor America IncShort v. Hyundai Motor America Inc
ORDER ON DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
Before the court is Defendants Hyundai Motor America, Inc. (“HMA“), Hyundai
II. BACKGROUND
A. The Alleged Defects
This is a putative class action about alleged defects in 2011-2013 Hyundai Tucsons and 2012-2016 Kia Souls (the “Class Vehicles“) that cause the Class Vehicles’ engines to stall and, in some cases, to catch fire. (See FAC ¶¶ 1, 10.) Plaintiffs allege that Defendants “knew or should have known” about these defects yet failed to disclose them. (See id. ¶ 2.) One plaintiff, James Twigger, alleges that his vehicle—a 2014 Kia Soul—in fact did catch fire while he was driving it, totally destroying his vehicle. (See id. ¶¶ 2, 28-30.)
1. 2012-2016 Kia Soul
Plaintiffs allege that in February 2019, KMA issued a recall for 378,967 Kia Soul vehicles from the 2012 to 2016 model years, because the catalytic converter in those vehicles’ 1.6-liter direct injection gasoline engines is susceptible to overheating. (See id. ¶¶ 34, 40, 42-43.) Further, the overheating can result in abnormal combustion, damage to the pistons’ connecting rods, fracturing the engine block, and ultimately catastrophic engine failure and oil leakage that can result in engine fires. (See id.) Plaintiffs allege that KMA “was aware of the dangers of an overheating catalytic converter in these engines since 2016.” (See id. ¶ 36.) Plaintiffs make similar allegations about Kia Souls with 2.0-liter engines but allege that KMA has not announced a recall for those vehicles. (See id. ¶ 43.)
2. 2011-2013 Hyundai Tucson
Plaintiffs allege that manufacturing defects “leading to oil pan leaks in 2011-2013 Hyundai Tucson vehicles have caused serious risk of harm in the form of spontaneous engine stalling and engine fire.” (See id. ¶ 44.) HMA issued a recall for “at least 120,000” Tucson SUVs from the 2011-2013 model years” due to oil pan leakage. (See id. ¶ 45.) However, Plaintiffs allege that the recall did not identify manufacturing defects in the Tucson‘s 2.0-liter engine as responsible for the oil pan leaks and fires, and even in July 2019, only referred to the Tucson‘s defect as “an important safety matter.” (See id.) That month, HMA announced another recall, but Plaintiffs allege that the recall does not address the root cause of the problem and is “too little too late.” (See id. ¶¶ 49-50.)
Plaintiffs allege that Defendants “knew or should have known” about the Class Vehicle defects, and that Defendants “did not disclose any of the defects and have done nothing but conceal them until very recently.” (See id. ¶¶ 51, 65, 66.) Plaintiffs also make more specific allegations about Defendants’ knowledge of the alleged defects. (See id. ¶¶ 52-54, 57, 60-62, 65, 67-68.)
First, Plaintiffs allege that Defendants knew about the alleged defects because Defendants “have previously recalled other vehicles with GDI engines for similar defects.” (See id. ¶¶ 52-53.) Specifically, Plaintiffs aver that in September 2015, Defendants recalled 2011-2012 Hyundai Sonata vehicles, and in March 2017, Defendants recalled 2013-2014 Hyundai Sonata and Santa Fe Sport vehicles equipped with 2.0 and 2.4-liter “Theta II” GDI engines like those in the 2011-2013 Hyundai Tucsons. (See id.) Plaintiffs quote National Highway Traffic Safety Administration (“NHTSA“) safety recall reports that describe the manufacturing defects in the recalled vehicles in detail. (See id. ¶¶ 54, 57.)
Second, Plaintiffs allege that Defendants “should have caught” the defects during Defendants’ “rigorous durability testing” at KMA and HMA‘s joint testing facility, known as the “Proving Grounds.” (See id. ¶¶ 60-62.)
Third, Plaintiffs allege that Defendants “definitely knew” about the defects in “at least the 1.6-liter engine” by mid-2016 at the latest, because KMA introduced programming that presumably remedied the problem in the 2012-2016 vehicles for 2017 model year Kia Soul vehicles. (See id. ¶ 65.) Thus, Plaintiffs allege that KMA “actively concealed its knowledge” of the defect between 2016 and 2019. (See id.)
Fourth, Plaintiffs allege that NHTSA received hundreds of complaints dating back to 2011 about 2012-2016 Kia Soul models with both the 1.6-liter and 2.0-liter engines. (See id. ¶ 67 (listing NHTSA complaints including hearing a “loud bang” and seeing “oil leaking from hole blown in lower engine block“; recounting losing power, the car shutting down “completely,” “within a few minutes smoke started coming from the hood of the car followed by a small fire,” and “the fire grew and completely burned the car“; describing how her “husband opened the door to the garage and found flames coming from the stationary Kia” and how “the entire garage caught fire“).) Plaintiffs allege similar NHTSA complaints about the 2011-2013 Hyundai Tucson vehicles. (See id. ¶ 68 (listing NHTSA complaints including “catastrophic engine failure“; and “my engine blew on my 2013 Tucson, less than 75[,]000 miles.“).)
C. Plaintiffs’ Claims
Plaintiffs bring claims on behalf of a putative nationwide class and five putative statewide subclasses. (See id. ¶¶ 77-78.) Plaintiffs define the putative nationwide class as “[a]ll persons or entities in the United States (including its territories and the District of Columbia) who purchased or leased a Class Vehicle.” (Id. ¶ 77.) The five statewide putative classes include residents of California, Ohio, Pennsylvania, Washington, and West Virginia. (Id. ¶ 78.) Plaintiffs define the statewide putative classes as “[a]ll persons or entities in [name of state] who purchased or leased a Class Vehicle.” (Id.) On behalf of themselves and these putative classes, Plaintiffs bring the following 15 claims:
| | Putative Class |
|---|---|
| Count I. Fraud by Concealment | The Nationwide Class, or alternatively, each of the state classes |
| Count II. Implied and Written Warranty under the Magnuson-Moss Warranty Act, | The Nationwide Class |
| Count III. California Unfair Competition Law, | The Nationwide Class or, in the alternative, Plaintiff Parker on behalf of the California State Class |
| Count IV. Violations of the California False Advertising Law, | The Nationwide Class or, in the alternative, Plaintiff Parker on behalf of the California State Class |
| Count V. California Consumer Legal Remedies Act, | The Nationwide Class or, in the alternative, Plaintiff Parker on behalf of the California State Class |
| Count VI. Song-Beverly Consumer Warranty Act for Breach of Implied Warranties, | Plaintiff Parker on behalf of the California State Class |
| Count VII. Ohio Consumer Sales Practices Act, | Plaintiff Ronfeldt on behalf of the Ohio State Class |
| Count VIII. Ohio Deceptive Trade Practices Act, | Plaintiff Ronfeldt on behalf of the Ohio State Class |
| Count IX. Implied Warranty of Merchantability, | Plaintiff Ronfeldt on behalf of the Ohio State Class |
| Count X. Pennsylvania Unfair Trade Practices and Consumer Protection Law, | The DiPardo Plaintiffs on behalf of the Pennsylvania State Class |
| Count XI. Implied Warranty of Merchantability, | The DiPardo Plaintiffs on behalf of the Pennsylvania State Class |
| Count XII. Washington Consumer Protection Act, | Plaintiffs Short and Snider on behalf of the Washington State Class |
| Count XIII. Implied Warranty of Merchantability, | Plaintiffs Short and Snider on behalf of the Washington State Class |
| Count XIV. West Virginia Consumer Credit and Protection Act, | Plaintiff Twigger on behalf of the West Virginia State Class |
| Count XV. Implied Warranty of Merchantability, | Plaintiff Twigger on behalf of the West Virginia State Class |
(See id. ¶¶ 99-274.) Plaintiffs do not bring personal injury or product liability claims. (See generally id.) Rather, Plaintiffs’ claims are based primarily on Plaintiffs’ allegations that they have been financially harmed by Defendants’ failure to disclose the alleged defects, because if Defendants’ had disclosed the defects, Plaintiffs “would not have leased or purchased” their vehicles “or would have paid considerably less” for them. (See id. ¶¶ 22-28.) Further, Plaintiffs allege that they “believe that, as a result of Defendants’ conduct, the market values of the Class Vehicles have been
Defendants move to dismiss Plaintiffs’ amended complaint on the following grounds: (1) Plaintiffs fail to meet
III. ANALYSIS
A. Legal Standards
Generally, a district court may not consider any material beyond the pleadings in ruling on a
B. Plaintiffs Short, Parker, Snider, Jennifer DiPardo, and Anthony DiPardo‘s Standing
As jurisdiction must be established as a threshold matter, the court considers it first. See Lowry v. Barnhart, 329 F.3d 1019, 1022 (9th Cir. 2003) (citing Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94 (1998)). “[T]he jurisdictional question of standing precedes, and does not require, analysis of the merits.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (internal quotation omitted).
Standing has three elements: “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). The plaintiff bears the burden of establishing these elements, and when “a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc., 528 U.S. at 181, (quoting Lujan, 504 U.S. at 560); see also Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013).
The standing inquiry is distinct from the merits of Plaintiffs’ claims. See,
Defendants do not challenge standing for Mr. Twigger and Mr. Ronfeldt, each of whom allege that their vehicles manifested defects. (See FAC ¶¶ 2, 26, 28-30.) Defendants instead claim that the remaining Plaintiffs lack standing because they “do not allege they have experienced any problems with their vehicles, much less engine failure due to the alleged defect.” (See Mot. at 21 (citing id. ¶¶ 22-25).) Instead, the other Plaintiffs allege that “[h]ad Defendants disclosed the safety-related defect and risk of fire or stalling at the time of lease and purchase, Plaintiff[s] would not have leased or purchased [their] vehicle or would have paid considerably less for it.” (Id. ¶¶ 22-25.) Each of the remaining Plaintiffs also alleges that they regularly service their vehicle but are now “concerned about driving it due to the dangers resulting from the defect” and believes that “its market value has been diminished as a result of the defect.” (See id.) More generally, Plaintiffs allege that “consumers have been driving unsafe vehicles that would suddenly stall at speed or burst into flames” (see id. ¶ 74) and that “Class Vehicles have also diminished in value as a result of Defendants’ fraud” (see id. ¶ 106).
Economic injury under the “benefit of the bargain” theory is widely recognized to confer standing when adequately alleged. See, e.g., Cent. Delta Water Agency v. United States, 306 F.3d 938, 947-48 (9th Cir. 2002); see also In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 754 F. Supp. 2d 1145, 1162 (C.D. Cal. 2010) (“In re Toyota I“) (“While a statistically significant propensity for [an alleged vehicle defect] may not be considered ‘actual’ or ‘imminent,’ the market effect of the [alleged defect] undoubtedly is actual or imminent (as well as concrete and particularized)“). When a plaintiff sufficiently pleads “overpayment, loss in value, or loss of usefulness,” those allegations confer standing. See id. at 1166; see also Maya v. Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011) (plaintiffs have standing when they spend money “that, absent defendants’ actions, they would not have spent“); Doyle v. Chrysler Grp., LLC, 663 F. App‘x 576, 578 (9th Cir. 2016) (concluding that a plaintiff had standing because he alleged that he “suffered economic loss when he purchased a replacement regulator with an undisclosed safety defect“).
Although the remaining Plaintiffs’ allegations that they “believe” the market value has diminished and they are “concerned” about driving their vehicles alone may be insufficient to confer standing, these Plaintiffs nevertheless have standing under the economic loss rule. Plaintiffs allege that the Class Vehicles suffer from safety defects that create the risk that the engines will catch fire. (See FAC ¶¶ 1, 10.) Ms. Short, Ms. Parker, Ms. Snider, Mr. DiPardo, and Ms. DiPardo each allege that if Defendants had disclosed these defects, they would not have purchased their vehicles or would have paid less for them. (See id. ¶¶ 22-25.)
The cases Defendants rely on are distinguishable. In Cahen v. Toyota Motor Corp., 717 Fed. App‘x 720, 723 (9th Cir. 2017), the Ninth Circuit held that the plaintiffs lacked standing when their alleged injury was the risk that their vehicles’ computer systems would be hacked. The Ninth Circuit concluded that the
Defendants also rely on Anderson v. Hyundai Motor Co. Ltd., No. SACV131842DMGRNBX, 2014 WL 12579305, at *7 (C.D. Cal. July 24, 2014), for the proposition that when plaintiffs allege economic loss predicated solely on how a product functions absent manifestation of a defect, the plaintiffs must allege “something more” than “overpaying for a defective product.” (See Mot. at 22.) However, Anderson is inapposite because the Anderson court held that the plaintiffs’ alleged injuries were too speculative because the plaintiffs had “not adequately demonstrated that there is any defect” in the product at issue. Anderson, 2014 WL 12579305, at *6. Moreover, the “something more” language is quoted from In re Toyota Motor Corp., 790 F. Supp. 2d 1152, 1165-66 & n.11 (C.D. Cal. 2011) (“In re Toyota II“), a case in which the district court denied the defendants’
Based on the foregoing analysis, the court concludes that each Plaintiff sufficiently alleges a concrete and particularized economic injury in fact that satisfies Article III standing. Accordingly, the court DENIES Defendants’ motion to dismiss on this ground.
C. Plaintiffs’ Fraud-Based Claims (Counts I, III, IV, V, VIII, X, XII, and XIV)
Defendants argue—and Plaintiffs do not contest—that Plaintiffs’ claims under Counts I, III, IV, V, VIII, X, XII, and XIV sound in fraud and are therefore subject to the heightened pleading standards of
Under
The complaint must include an account of the time, place and specific content of false representations as well as the identities of the parties to the misrepresentations. Depot, Inc. v. Caring for Montanans, Inc., 915 F.3d 643, 668 (9th Cir. 2019). In other words, Plaintiffs must allege “the who, what, when, where, and how” of the alleged fraud. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997); see also Macris v. Bank of Am., N.A., No. CV F 11-1986 LJO SKO, 2012 WL 273120, at *11 (E.D. Cal. Jan. 30, 2012) (stating that the plaintiffs must allege “the names of the persons who made the allegedly fraudulent misrepresentations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written“) (internal quotation omitted).
Defendants argue that Plaintiffs fail to meet
Defendants contend that Plaintiffs “do not allege a single affirmative statement by [D]efendants in connection with the underlying transactions, nor any conduct that would constitute a deceptive act or practice, instead asserting only unsupported conclusions that [D]efendants ‘concealed’ the truth about the purported defects, or ‘made and/or disseminated untrue or misleading statements.‘” (See Mot. at 14 (citing FAC ¶¶ 14, 16, 65, 95, 102-4, 136, 146-7, 236-7, 259).)
In response, Plaintiffs do not address Defendants’ arguments regarding specific misrepresentations and do not identify any alleged misrepresentations by Defendants. (See generally Resp.) Instead, Plaintiffs focus on Defendants’ alleged “fraud by concealment and omission.” (See id. at 16.) Therefore, the court accepts Defendants’ position that Plaintiffs do not allege affirmative misrepresentations and the parties’ apparent agreement that Plaintiffs’ fraud-based claims rise or fall on Plaintiffs’ allegations of concealment and omissions.
2. Fraudulent Omissions
Defendants contend that Plaintiffs’ allegations of Defendants’ omissions fail to satisfy
Plaintiffs plead sufficient facts which, if taken as true, suggest that Defendants had a duty to disclose information about the Class Vehicles’ defects at the point at which they had knowledge of them. Under California law, a safety defect that a reasonable customer would find material triggers a duty to disclose, even absent a transaction or fiduciary relationship. See Reniger v. Hyundai Motor Am., 122 F. Supp. 3d 888, 897 (N.D. Cal. 2015) (citing cases). Similarly, under Washington law, when a “manufacturer has superior information regarding defects that are not readily ascertainable to customers, it has a duty to disclose that information.” See Carideo, 706 F. Supp. 2d at 1133 (quoting Zwicker, 2007 WL 5309204, at *4); see also Testo v. Russ Dunmire Oldsmobile, Inc., 554 P.2d 349, 358 (Wash. Ct. App. 976).
A similar duty to disclose also exists under Pennsylvania, Ohio, and West Virginia law. See Drayton v. Pilgrim‘s Pride Corp., No. CIV.A. 03-2334, 2004 WL 765123, at *7 (E.D. Pa. Mar. 31, 2004) (Manufacturers have “a duty to disclose a know[n] latent defect to a purchaser when the purchaser is unsophisticated and does not have access to the same information as the manufacturer.‘“) (quoting Zwiercan v. Gen. Motors Corp., 2002 WL 31053838, 58 Pa. D. & C. 4th 251, 259 (Pa. Com. Pl. 2002)); Belville v. Ford Motor Co., 60 F. Supp. 3d 690, 696 (S.D. W. Va. 2014) (discussing the duty to disclose “facts basic to the transaction” when “objective circumstances” are such that the person “would reasonably expect disclosure of those facts“); Spears v. Chrysler LLC, No. 08-331, 2009 WL 7424561, at *10 (S.D. Ohio Feb. 8, 2011).
The duty to disclose, however, depends on Defendants’ knowledge of the alleged defects at the times Plaintiffs purchased their Class Vehicles.4 See Grodzitsky v. Am. Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 690822, at *7 (C.D. Cal. Feb. 19, 2013) (holding that the plaintiffs failed to establish a plausible inference of knowledge based on their allegation that the defendant “received customer complaints after the sales of the vehicles in question.“).
The court first concludes that Plaintiffs’ allegations that Defendants knew of the alleged defects because they generally conduct rigorous testing are insufficient to allege knowledge under
design defects that result in stalling and fires. (See FAC ¶ 52.) These allegations are too general to meet
Plaintiffs’ remaining allegations regarding Defendants’ knowledge of the Class Vehicles’ defects are based on NHTSA complaints, Defendants’ recalls of defective GDI engines since September 2015, Defendants’ admission that “as many as 1%” of their vehicles have “caught on fire,” and Defendants’ having implemented a change in July 2016 meant to correct the Kia Soul defect. (See Resp. at 20-21.) Plaintiffs purchased their vehicles at different times, and Plaintiffs’ allegations of Defendants’ knowledge also differ in time as to the three vehicle models at issue. The court concludes that Ms. Parker and Mr. Ronfeldt sufficiently allege knowledge and fulfill
a. Ms. Parker and Mr. Ronfeldt Allege with Particularity Defendants’ Knowledge of the Kia Soul Defect as of Mid-2016
Ms. Parker purchased a used 2014 Kia Soul in 2018 from Palm Springs Kia in California. (See FAC ¶ 23.) Mr. Ronfeldt purchased a new 2016 Kia Soul in November 2016. (See id. ¶ 26.) Plaintiffs’ allegations, taken together and taken as true, are sufficient to plausibly infer that Defendants were aware of the Kia Soul‘s defect prior to
Ms. Parker‘s and Mr. Ronfeldt‘s purchases. Plaintiffs allege that Kia6 instituted a “fix” by mid-2016—prior to Ms. Parker‘s and Mr. Ronfeldt‘s purchases—for the same defects in its Kia Soul models beginning in 2017. (See
Moreover, Plaintiffs’ allegations that consumers complained to the NHTSA that their Kia Soul engines were failing and catching fire starting in 2011 buttress the inference of Defendants’ knowledge. (See
Ms. Parker and Mr. Ronfeldt have sufficiently pleaded the remaining elements required to state an omission claim under
Accordingly, the court DENIES Defendants’ motion to dismiss Ms. Parker‘s (Counts I, III-V) and Mr. Ronfeldt‘s (Counts I, III-V, VIII) fraud-based claims on
b. Ms. Short, Ms. Snider, Mr. and Ms. DiPardo, and Mr. Twigger Fail to Sufficiently Allege Defendants’ Knowledge as of Their Purchase Dates.
Ms. Short leased her 2013 Hyundai Tucson on March 30, 2013, then purchased it at the end of the lease from Hyundai of Kirkland. (See
Ms. Snider, Mr. DiPardo, Ms. DiPardo, and Mr. Twigger all purchased their Kia Soul vehicles prior to the 2016 “fix” and prior to the September 2015 recalls of related models. (See FAC ¶¶ 24 (stating Ms. Snider purchased her Kia Soul in 2012), 25 (stating that Mr. DiPardo and Ms. DiPardo “purchased a new 2014 Kia Soul,” but not providing a purchase date), 27 (stating that Mr. Twigger purchased his Kia Soul in July 2014).) Plaintiffs therefore must rest on the NHTSA complaints to infer Defendants’ knowledge of the Kia Soul defects at the time of Ms. Snider‘s, Mr. DiPardo and Ms. DiPardo‘s, and Mr. Twigger‘s purchases. Although Plaintiffs refer to “hundreds” of total NHTSA complaints about the Kia Soul models at issue dating back to 2011, Plaintiffs do not provide the dates of the specific examples
Moreover, Plaintiffs do not convey whether the NHTSA complaints prior to Plaintiffs’ purchase dates refer to the defect Plaintiffs allege in this lawsuit and do not allege that Defendants were aware of these NHTSA complaints at the time of Plaintiffs’ purchases. (See generally FAC.) Even if Plaintiffs did identify NHTSA complaints, they would likely be insufficient, standing alone, to create a plausible inference of Defendants’ knowledge of the defects at issue. See Wilson, 668 F.3d at 1147.
Accordingly, the court GRANTS Defendants’ motion to dismiss Ms. Short‘s (Counts I, III-V, XII), Ms. Snider‘s (Counts I, III-V, XII), Mr. DiPardo and Ms. DiPardo‘s (Counts I, III-V, X), and Mr. Twigger‘s (Counts I, III-V, XIV) fraud-based claims, but with leave to amend to include facts, if any, that cure the defects in these claims.8 See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (stating that where claims are dismissed under
D. Mr. Ronfeldt‘s ODTPA and OCSPA Claims (Counts VII and VIII)
Defendants move to dismiss (1) Mr. Ronfeldt‘s ODTPA claim on the ground that Mr. Ronfeldt lacks standing to bring that claim; and (2) Mr. Ronfeldt‘s OCSPA claim on the basis that Plaintiffs fail to properly allege notice. (See Mot. at 22-26.)
1. ODTPA Claim (Count VIII)
Defendants move to dismiss Mr. Ronfeldt‘s ODTPA claim on the ground that individual consumers lack standing to sue under the ODTPA. (See Mot. at 23.) Although Defendants acknowledge that the Ohio Supreme Court has not definitively resolved the question, Defendants rely on the “vast majority of federal courts and all lower state courts to address the issue” that have “concluded that relief under the [O]DTPA is not available to consumers.” (See
Here, several factors persuade the court that the Ohio Supreme Court would determine that the ODTPA does not provide a cause of action for an individual consumer. First, the clear weight of authority in Ohio‘s appellate courts agrees. See, e.g., Michelson v. Volkswagen Aktiengesellschaft, 99 N.E. 3d 475, 479-80 (Ohio Ct. App. 2018); Dawson v. Blockbuster, Inc., No. 86451, 2006 WL 1061769, at *4 (Ohio Ct. App. Mar. 16, 2006); Hamilton v. Ball, 7 N.E. 3d 1241, 1252-53 (Ohio Ct. App. 2014). Second, although the term “individual” suggests consumers may bring claims, Ohio courts look to how federal courts construe the Lanham Act when construing the ODTPA, which also does not provide a cause of action for individuals. See Gascho v. Global Fitness Holdings, LLC, 863 F. Supp. 2d 677, 698 (S.D. Ohio 2012). Third, the statutory context suggests that the majority interpretation does not read “individual” out of the statutory text. As several Ohio appellate courts point out, a person may be able to sue under the UDTPA in their individual capacity but only “as a participant in commercial activity.” See id.; see also Hamilton v. Ball, 7 N.E.3d 1241, 1253 (Ohio Ct. App. 2014).
Therefore, the court GRANTS Defendants’ motion to dismiss Mr. Ronfeldt‘s ODTPA claim (Count VIII) with prejudice.
2. OCSPA Claim
Defendants move to dismiss Mr. Ronfeldt‘s OCSPA claim for the independent reason that Mr. Ronfeldt fails to adequately allege notice. (See Mot. at 25-26.) To pursue a class action claim under the OCSPA, Mr. Ronfeldt must allege that Defendants had prior notice that their conduct was “deceptive or unconscionable.” See Pattie v. Coach, Inc., 29 F. Supp. 3d 1051, 1055 (N.D. Ohio 2014) (quoting
The notice requirement must be read alongside the OSCPA‘s direction that it is a remedial law which is designed to compensate for traditional consumer remedies and so must be liberally construed, see Johnson v. Microsoft Corp., 802 N.E.2d at 720, and that the notice requirement demands only “reasonable specificity.” Amato v. Gen. Motors Corp., 463 N.E.2d 625, 632 (Ohio Ct. App. 1982) (“[T]here must be some leeway for a general rule which reasonably tells potential actors or practitioners what they may not do.“). Although Plaintiffs do not point to a regulation or an Ohio state court case that directly addresses whether Defendants are on notice that a vehicle manufacturer‘s failure to disclose engine defects is an unfair or deceptive act or practice under the OSCPA, Plaintiffs cite to Ohio state cases finding that certain misrepresentations
For example, it is an unfair or deceptive act or practice for a supplier to represent “[t]hat the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not,” see
E. Implied Warranty Claims (Counts IX, XI, XIII, and XV)
Defendants argue that Plaintiffs’ claims for breach of implied warranties should be dismissed because (1) Mr. Twigger, Ms. Short, Ms. Snider, and Mr. Ronfeldt do not stand in vertical contractual privity with Defendants and (2) Ms. Short, Ms. Snider, Ms. Parker, Mr. DiPardo, and Ms. DiPardo fail to allege facts indicating their vehicles are unfit. (See Mot. at 27-28.)
1. Privity
a. Mr. Twigger‘s Implied Warranty Claim (Count XV)
Plaintiffs’ response cites to West Virginia case authority that states in no uncertain terms that “[t]he requirement of privity of contract in an action for breach of express or implied warranty in West Virginia is hereby abolished.” (See Resp. at 23 (quoting E. Steel Constructors, Inc. v. City of Salem, 549 S.E. 2d 266, 276 (W. Va. 2001) (in turn quoting Sewell v. Gregory, 371 S.E.2d 82 (W. Va. 1988))).) Defendants do not address this authority in reply (see generally Reply) and recent West Virginia cases continue to affirm it. See, e.g., Harper v. Navistar, Inc., No. 2:15-CV-03558, 2016 WL 1178782, at *4 (S.D.W. Va. Mar. 23, 2016); Ohio Cty. Dev. Auth. v. Pederson & Pederson, Inc., No. CIV.A. 5:09CV27, 2010 WL 391616, at *6 (N.D.W. Va. Jan. 26, 2010). Therefore, the court will not dismiss Mr. Twigger‘s implied warranty claim (Count XV) on privity grounds.
b. Mr. Ronfeldt‘s Implied Warranty Claim (Count IX)
In contrast to West Virginia state law, Ohio state law requires that a plaintiff bringing an implied warranty claim stand in vertical privity with the defendant. See Curl v. Volkswagen of Am., Inc., 871 N.E.2d 1141, 1148 (Ohio 2007) (“[I]n Ohio, vertical privity exists only between immediate links in the distribution chain). Plaintiffs contend that Mr. Ronfeldt has established vertical privity because he purchased his Kia Soul from an authorized dealership and because the manufacturer issued a written warranty covering the vehicle in question. (See Resp. at 23.) The default rule under Ohio state law is that “[o]ne who receives goods from another for resale to a third person is not thereby the other‘s agent in the transaction.” Curl, 871 N.E.2d at 1148 (quoting Restatement (Second) of Agency § 14J (Am Law Inst. 1958)) (alteration in Curl). To plausibly allege vertical privity with the manufacturer, Mr. Ronfeldt must allege facts showing that the dealership‘s duty to act is primarily for
Plaintiffs next argue that federal courts applying Ohio law find the privity requirement satisfied “where the manufacturer issued a written warranty covering the vehicle in question and the claims are based on warranty-covered defects.” See In re FCA US LLC Monostable Elec. Gearshift Litig., 355 F. Supp. 3d 582, 596 (E.D. Mich. 2018) (citing Roxy Home Improvement, LLC v. Mercedes-Benz USA, LLC, No. 17-01817, 2018 WL 1705800, at *5 (N.D. Ohio Apr. 9, 2018)). However, these authorities stand only for the proposition that privity is established with respect to express warranties where the plaintiff‘s claims are “based on warranty-covered defects.” See In re FCA US LLC Monostable Elec. Gearshift Litig., 355 F. Supp. 3d at 596. Plaintiffs cite to no Ohio state law authority, and the court is aware of none, under which the mere presence of a written warranty overcomes the privity requirement for a claim for breach of an implied warranty.
Plaintiffs assert in response to Defendants’ motion to dismiss that Mr. Ronfeldt possesses a written warranty for his 2016 Kia Soul. (See Resp. at 23 (citing FAC ¶¶ 26-27).) Plaintiffs’ amended complaint only refers to this warranty in passing, but even if Mr. Ronfeldt had alleged more detailed facts regarding the warranty‘s coverage of the alleged defect, the amended complaint does not contain a claim for breach of an express warranty.
Therefore, the amended complaint fails to allege facts sufficient to plausibly allege that Mr. Ronfeldt stands in vertical privity with the manufacturer, Defendant KMC. On that basis the court GRANTS Defendants’ motion to dismiss Mr. Ronfeldt‘s implied warranty claim (Count IX), with leave to amend to include facts, if they exist, sufficient to plausibly allege vertical privity.
c. Ms. Short and Ms. Snider‘s Implied Warranty Claim (Count XIII)
Like Ohio state law, Washington state law requires individual consumers to establish vertical privity with the manufacturer to state a claim for breach of an implied warranty. See Lohr v. Nissan N. Am., Inc., No. C16-1023RSM, 2017 WL 1037555, at *7 (W.D. Wash. Mar. 17, 2017) (citing Baughn v. Honda Motor Co., 727 P.2d 655, 668-69 (Wash. 1986)). However, an exception to the vertical privity requirement exists for implied warranties where plaintiffs are the intended third-party beneficiaries of an underlying contract between a manufacturer and intermediate dealer. See Baughn, 727 P.2d at 630. “Plaintiffs can demonstrate they are third-party beneficiaries where a manufacturer knew a purchaser‘s identity, knew the purchaser‘s purpose for purchasing the manufacturer‘s product, knew a purchaser‘s requirements for the product, delivered the product, and/or attempted repairs of the product in question.” Lohr, 2017 WL 1037555, at *7 (citing Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 831 P.2d 724, 730 (Wash. 1992)). “Washington courts consider these factors in a ‘sum of the interaction’ test, to ‘determine whether the manufacturer was sufficiently involved in the transaction (including post-sale)
Here, Plaintiffs allege that they purchased the Class Vehicles at dealerships but fail to allege additional facts under which the court can draw the reasonable inference that Plaintiffs are third-party beneficiaries of an implied warranty between Defendants and the dealerships. That is not to say that Plaintiffs could never plausibly allege third-party beneficiary status; only that the current amended complaint fails to do so. Accordingly, the court GRANTS Defendants’ motion to dismiss Ms. Short and Ms. Snider‘s implied warranty claim (Count XIII) but with leave to amend to include facts, should they exist, of Plaintiffs’ third-party beneficiary status.
2. Plaintiffs’ Allegations of Unfitness
Defendants contend that Ms. Short, Ms. Parker, Ms. Snider, Mr. DiPardo, and Ms. DiPardo “have not alleged any facts indicating that their vehicles have experienced any issues or have any materialized problems” that make them unfit to drive. (See Mot. at 28.) Defendants rely on cases that are largely distinguishable. For example, in Tallmadge v. Aurora Chrysler Plymouth, Inc., 605 P.2d 1275, 1278 (Wash. Ct. App. 1979), the Washington Court of Appeals affirmed a trial judge‘s conclusion following a bench trial that the vehicle at issue was merchantable because “the defects were minor and could be repaired.”
The court finds that Defendants’ cited authority presents insufficient grounds to dismiss Plaintiffs’ implied warranty claims at the pleading stage, particularly when the alleged defect—that the vehicle‘s engine may catch fire—so directly threatens human safety. See, e.g., In re Toyota I, 754 F. Supp. 2d at 1186 (denying the defendants’ motion to dismiss an implied warranty claim on the basis that some of the plaintiffs’ vehicles had not manifested the alleged defect). Therefore, the court DENIES Defendants’ motion to dismiss Plaintiffs’ implied warranty claims on unfitness grounds.
F. Magnuson-Moss Warranty Act Claims (Count II)
Defendants argue that Plaintiffs’ MMWA claims fail because the MMWA provides that “[n]o claim shall be cognizable in a suit brought” in federal district court “if the action is brought as a class action, and the number of named plaintiffs is less than one hundred.” (See Mot. at 29 (quoting
It does not appear that the Ninth Circuit has addressed the interplay between the MMWA‘s 100-named-plaintiff requirement and CAFA. See MacDougall v. Am. Honda Motor Co., No. SACV1701079AGDFMX, 2017 WL 8236359, at *4 (C.D. Cal. Dec. 4, 2017). However, the court agrees with the reasoning
G. Song-Beverly Act (Count VI)
Defendants argue that Ms. Parker‘s Song-Beverly Act claim fails because the Act applies only to new products, and Ms. Parker alleges she purchased a used vehicle from Palm Springs Kia. (See Mot. at 24 (citing FAC ¶ 23).) Plaintiffs respond that the Song-Beverly Act applies to used vehicle purchases “as long as an express warranty was given with the purchase,” (Resp. at 24 (citing
The court agrees with Defendants. Under
Accordingly, the court GRANTS Defendants’ motion to dismiss Ms. Parker‘s claim under the Song-Beverly Act (Count VI) and dismisses this claim with prejudice.
IV. CONCLUSION
Based on the foregoing analysis, the court GRANTS in part and DENIES in part Defendants’ motion to dismiss (Dkt. # 43) as follows:
- The court DENIES Defendants’ motion to dismiss Ms. Parker‘s (Counts I, III-V) and Mr. Ronfeldt‘s (Counts I, III-V, VIII) fraud-based claims on
Rule 9 grounds; - The court GRANTS Defendants’ motion to dismiss Ms. Short‘s (Counts I, III-V, XII), Ms. Snider‘s (Counts I, III-V, XII), Mr. DiPardo and Ms. DiPardo‘s (Counts I, III-V, X), and Mr. Twigger‘s (Counts I, III-V, XIV) fraud-based claims, but with leave to amend to include facts, if any, that cure the defects in these claims;
- The court GRANTS Defendants’ motion to dismiss Mr. Ronfeldt‘s ODTPA claim WITH PREJUDICE (Count VIII);
- The court DENIES Defendants’ motion to dismiss Mr. Ronfeldt‘s OSCPA claim (Count VII);
- The court GRANTS Defendants’ motion to dismiss Mr. Ronfeldt‘s implied warranty claim (Count IX), with leave to amend to include facts, if any, that cure the defects in this claim;
- The court GRANTS Defendants’ motion to dismiss Ms. Short and Ms. Snider‘s implied warranty claim
(Count XIII) but with leave to amend to include facts, should they exist, of Plaintiffs’ third-party beneficiary status; - The court DENIES Defendants’ motion to dismiss Plaintiffs’ remaining implied warranty claims (Counts XI, XV);
- The court GRANTS Defendants’ motion to dismiss Plaintiffs’ claims under the MMWA (Count II) and dismisses these claims WITH PREJUDICE;
- The court GRANTS Defendants’ motion to dismiss Ms. Parker‘s claim under the Song-Beverly Act (Count VI) and dismisses this claim WITH PREJUDICE; and
- The court DENIES Defendants’ motion in all other respects.
Plaintiffs shall file a second amended complaint, if any, alleging facts that resolve the issues stated herein, no later than twenty (20) days from the filing date of this order. Failure to timely file a second amended complaint may result in the dismissal of Plaintiffs’ first amended complaint.
Dated this 15th day of March, 2020.
JAMES L. ROBART
United States District Judge