ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court are defendant Ford Motor Company’s (“Ford”) Motion for Summary Judgment as to Plaintiff Richard Smith (“Smith”), and Motion for Summary Judgment as to Plaintiff Rebecca Klein (“Klein”), each filed November 17, 2008. Plaintiffs have filed a joint opposition to both motions, to which Ford has replied. Having read and considered the papers filed in support of and in opposition to the motions, the Court hereby rules as follows. 1
PROCEDURAL AND FACTUAL BACKGROUND 2
On January 25, 2006 plaintiffs filed the instant action. On September 22, 2006,
An ignition lock is the vehicle part in which the key is inserted and turned to activate the ignition; its purpose is to start the car. When an ignition lock fails, the driver is prevented from turning the key. (See Declaration of Dina E. Micheletti (“Micheletti Deck”) Ex. 7 at 31132-33.) According to Ford’s internal engineering specifications, its ignition locks are designed to function for at least 80,000 cycles without maintenance. 3 (See Declaration of Jeffrey L Fazio (“Fazio Deck”) Ex. C at SNYF 000489; see also Micheletti Deck Ex. A (Deposition of Gerald P. Bonnici (“Bonnici Dep.”) at 261:17-23.) Thus, by plaintiffs’ calculation “[i]f owners start their Focus 10 times per day, every day, for as long as they own their vehicle, the ignition lock would be cycled 3,650 times a year, thereby taking more than 20 years for an ignition lock to reach 80,000 cycles.” (See Pis.’ Opp’n at 3:19-4:1.)
In the instant litigation, plaintiffs contend the ignition locks in the subject Focus vehicles suffered from two separate but related defects, which plaintiffs characterize as the “ergonomic defect” and the “mechanical defect” (collectively, the “ignition-lock defect”). (See Pis.’ Opp’n at 5:3-6:2.) As described in a January 21, 2005 email written by Gerald P. Bonnici (“Bonnici”), Ford’s “engineer with responsibility for ignition locks in all Ford North American vehicles” (see Def.’s Reply at 5:4-5), because of the manner in which the ignition lock is attached to the steering column, the “angle [in which] you put your key in [and] out of [the] ignition lock is very awkward,” requiring “you to bend your wrist back to an ‘uncomfortable’ position — nearly horizontal instead of the normal 10:00-11:00 position” (the “ergonomic defect”). (See Micheletti Deck Ex. 7 at SNYF 031132-33.) As Bonnici further explains:
[W]hen you shut off your car, you start rotating back [and] pulling on the key in the “normal” key out position. But because this design requires extra rotation from that “normal” position, customers end up pulling the key out against the tumblers before the lock is ready to release the key. Repeated occurrences of this bend the tumblers[.] [Finally, bent tumblers prevent [the] lock from turning.
(See id.) According to Bonnici, the ignition lock’s tumblers’ susceptibility to bending presented a “durability issue” (the “mechanical defect”). (See id. Ex. 19 at SNYF 00031212, Ex. 23 at SNYF 00021200.)
The Focus was introduced in the United States in 1999 as a 2000 model year vehicle.
(See
Declaration of Gerald P. Bonnici (“Bonnici Deck”) ¶ 14.) In a June, 1999 document, authored prior to the “launch” of the Ford Focus in the United States, Ford engineers reported that inserting the key into the ignition required “high effort.”
(See
Micheletti Deck Ex. 54 at SNYF00022037.) The 1999 launch of the Focus was “followed by a relatively large number of warranty repairs related to the ignition lock on the 2000 model year Ford Focus and the 2001 model year Focuses built before October 2000,” described as the “ignition-lock launch spike.”
(See
Bonnici Deck ¶¶ 15-16.) As of July 31, 2000, ignition locks installed in the 2000 Focus had failed at a rate of 53.89 R/1000 (or 5.4 percent), which Ford characterized as a rate “significantly worse than other car
Following the launch spike, in order to counter the high warranty repair rates, Ford and its ignition lock manufacturer made manufacturing and design changes to the subject ignition locks (see Bonnici Decl. ¶¶ 16, 18), which resulted in a substantial decrease in the warranty repair rates (see id. ¶ 17). 4 Specifically, from a warranty repair rate of 24.3 percent for its 2000 model year Focus vehicles, Ford saw the rate drop to 6.9% for its 2001 model year vehicles, then drop again to 3.1% for its 2002 model year vehicles, before rising to 12% for its 2003 model year vehicles. (See Micheletti Decl. Ex. 2.)
Additionally, during the relevant period, Ford operated an “After-Warranty Assistance” (“AWA”) program, which is described by Ford as “payments made on a case-by-case basis for repairs not covered by the vehicle warranty, service parts warranty or any Ford [Extended Service Plan], or any non-Ford service contract or aftermarket additive service warranty.” (See Declaration of Joseph C. Bradley (“Bradley Decl”) Ex. 3 at 2.) The AWA program covered repairs where a Ford vehicle was “not performing to customer expectations and there [was] an opportunity for increased customer satisfaction and owner loyalty.” (See Bradley Decl. Ex. 3 at 6.) Ford’s AWA manual provided a number of questions for dealers to consider when making a decision to offer AWA to a customer. (See Bradley Decl. Ex. 3 at 6-7.) Pursuant to the AWA program, Ford replaced 16,227 Focus ignition locks on its model year 2000 through 2006 Ford Focus vehicles, 9655 of which were repaired for 2000 model year Focus vehicles. (See Micheletti Decl. Ex. 2 at 2.) 5
Smith purchased a new 2003 model year Ford Focus from a Ford dealership on October 11, 2003. (See Deposition of Richard Smith (“Smith Dep.”) Ex. 2.) Smith also purchased Ford’s standard New Vehicle Limited Warranty, under which Ford agreed that “authorized Ford Motor Company dealers [would] repair, replace, or adjust all parts on [Smith’s] vehicle that [were] defective in factory-supplied materials or workmanship” for “three years or 36,000 miles.” (See Smith Dep. 20:18-22; see also Bradley Decl. ¶ 5, Ex. 1 at 5-6). In November 2005, after Smith had driven his Focus 56,705 miles, Smith’s ignition lock failed, preventing him from starting his vehicle. (See Smith Dep. Ex. 1 at 89-90). Smith paid $521 to have his ignition lock replaced at a Ford dealership. (See id.)
Klein purchased a used 2003 model year Ford Focus from Honda of Oakland in May 2004
(see
Deposition of Rebecca Klein (“Klein Dep.”) Ex. 4) after it previously had been driven for 37,274 miles as a rental car
(see
Klein Dep. 81:22-82:20). Klein bought the vehicle “as-is,” with no
In their TAC Plaintiffs assert state law claims against Ford for (1) Declaratory Relief; (2) Fraudulent Concealment/Nondisclosure; (3) Unjust Enrichment; (4) Unfair and Deceptive Acts and Practices in Violation of the Consumers Legal Remedies Act California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750 et. seq.; and (5) Unfair, Fraudulent, and Unlawful Practices under the Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code sections 17200-17209. {See TAC ¶¶ 79-107.) 6 Ford moves for summary judgment as to each of plaintiffs’ claims.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See Fed.R.Civ.P. 56(c).
The Supreme Court’s 1986 “trilogy” of
Celotex Corp. v. Catrett,
DISCUSSION
In its motions for summary judgment Ford argues (1) it had no duty to disclose the risk that the subject ignition locks would fail; (2) it’s standard three-year, 36,000 mile warranty is not unconscionable, and (3) Ford did not violate the Secret Warranty Law by not publicizing its AWA program. Additionally, Ford argues Klein lacks standing to bring a CLRA claim, lacks evidence that she suffered any loss as a result of any failure to disclose, and the restitution Klein seeks on her UCL claim constitutes a non-recoverable claim for damages. 7
1. Duty to Disclose Risk of Ignition Lock Failure
Plaintiffs’ claim under the CRLA is based in part on Ford’s not having disclosed the risk that ignition locks in its Focus vehicles would fail. 8 (See TAC ¶ 98 (citing Cal. Civ.Code § 1770(a)(5), (a)(7)).)
“The CLRA proscribes specified “unfair methods of competition and unfair or deceptive acts or practices’ in transactions for the sale or lease of goods to consumers.”
Daugherty v. American Honda Motor Co.,
Here, as noted, plaintiffs allege Ford failed to disclose, and was under an obligation to disclose, the risk that the subject ignition locks would fail after the expiration of the warranty period. The California Court of Appeal has held that a manufacturer cannot be found liable under the CLRA for failure to disclose a defect that manifests itself after expiration of the warranty period unless such omission (1) is “contrary to a representation actually made by the defendant” or (2) pertains to a “fact the defendant was obligated to disclose.”
See Daugherty,
Under California law, there are four circumstances in which an obligation to disclose may arise:
(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 facts.
See LiMandri v. Judkins,
Further, where, as here, a plaintiffs claim is predicated on a manufacturer’s failure to inform its customers of a product’s likelihood of failing outside the warranty period, the risk posed by such asserted defect cannot be “merely” the cost of the product’s repair,
see Daugherty,
Such rule is consistent with the policies underlying California warranty law. As noted in Daugherty:
‘[Vjirtually all product failures discovered in automobiles after expiration of the warranty can be attributed to a ‘latent defect’ that existed at the time of sale or during the term of the warranty. All parts will wear out sooner or later and thus have a limited effective life. Manufacturers always have knowledge regarding the effective life of particular parts and the likelihood of their failing within a particular period of time.... Manufacturers ... can always be said to ‘know’ that many parts will fail after the warranty period has expired. A rule that would make failure of a part actionable based on such ‘knowledge’ would render meaningless time/mileage limitations on warranty coverage.’
See Daugherty,
Accordingly, because plaintiffs’ CLRA claim is not based on any misrepresentation made by Ford, but rather is based on an allegation that Ford had a duty to disclose the risk its ignition locks would fail, plaintiffs’ claim, absent evidence of a safety concern, cannot succeed.
See Daugherty,
As a threshold matter, Ford argues the Court should follow the reasoning of
Iannacchino v. Ford Motor Co., 451
Mass. 623,
Where, as in this case, there is no allegation that the plaintiffs — or indeed anyone else — have suffered personal injury or property damage, the complaint must identify a legally required standard that vehicles were at least implicitly represented as meeting, but allegedly did not. When the standard that a product allegedly fails to meet is not one legally required by and enforced by the government, a claim of economic injury based on overpayment lacks the premise that the purchase price entitled the plaintiffs to a product that met that standard.
See Iannacchino
As the relevant “legally required” standard, Ford points to the National Highway Traffic Safety Act (“Safety Act”), 49 U.S.C. § 30101, et seq. (See Def.’s Smith Mot. at 13:28-14:7.) In response, plaintiffs argue their CLRA claim is not dependent on a violation of the Safety Act because the rule expressed in Iannacchino does not reflect California law and because, unlike in Iannacchino, the plaintiffs here have suffered property damage. (See Pis.’ Opp’n at 30:9-31:4.)
The Court declines to follow
Iannacchino.
Ford cites to no case authority, and the Court is aware of none, in which a court, applying California law in deciding whether to impose a duty to disclose a safety-related defect, has required a plaintiff to offer evidence of a violation of a standard legally required by and enforced by the government.
See, e.g., Oestreicher I,
Accordingly, the Court finds Smith and Klein may demonstrate a duty to disclose without showing the alleged ignition-lock defect violates a standard legally required by and enforced by the government under the Safety Act or other statute or regulation. The Court does, however, find the standards set forth under the Safety Act to be relevant to a determination of whether an alleged defect in an automotive part presents a safety concern. 10
Here, plaintiffs argue, the subject ignition locks present “safety/security risks” because such locks can (1) prevent drivers from starting their vehicles, and (2) prevent drivers from shutting off them vehicles’ engines. (See Pis.’ Opp’n at 29:17-19.)
Ford argues “there are no reports that anyone has ever been injured” by the failure of an ignition lock, and that the dangers described by plaintiffs are too speculative to amount to a safety issue giving rise to a duty of disclosure.
(See
Def.’s Mot. (Smith) at 14:13-25.) Ford further argues, by reference to the Safety Act, that “motor vehicle safety” does not include “any conceivable safety hazard, no matter how insignificant” (see
id.
at 14:26-15:4) (citing
United States v. General Motors Corp.,
In response, plaintiffs argue that “being unexpectedly stranded” raises safety concerns sufficient to require disclosure. Plaintiffs point, for example, to a complaint by a diabetic who reported that when her ignition lock failed, preventing her from starting the vehicle, she was “not able to get to her medicine.”
(See
Fazio Decl. Ex. H at 27.) Plaintiffs also point to what appears to be an in-house document, titled “Launch
&
Brand Plan,” in which Ford listed its “battery saver technology” and “fail-safe coolant” under the heading “safety/security.”
(See
Fazio Decl. Ex. S at 45, 47.) “Security” concerns, however, are distinguishable from “safety” concerns and, in any event, a marketing plan for batteries is not, contrary to plaintiffs’ argument, a concession that the defect at issue herein requires disclosure. Lastly, relying on cases decided under the Safety Act, plaintiffs argue that a part that fails in large numbers is more likely to pose a safety concern than a part that fails only on isolated occasions.
(See
Pis.’ Opp’n at 31:7-10.)
13
As defendants point out, how
Having considered the parties’ respective evidentiary showings and the applicable law, the Court agrees with Ford that the dangers envisioned by plaintiffs are speculative in nature, deriving in each instance from the particular location at which the driver initially has parked the vehicle and/or the driver’s individual circumstances. Plaintiffs offer no evidence that the ignition-lock defect causes engines to shut off unexpectedly or causes individuals to stop their vehicles under dangerous conditions. Nor do plaintiffs offer any legal authority for their argument that a failure to start a vehicle poses a safety concern requiring disclosure. Moreover, to impose such a duty based on risks of the nature cited by plaintiffs, would effectively require auto manufacturers to disclose the failure rate of every part that potentially could immobilize a vehicle. In the absence of authority to such effect, the Court declines to do so.
Accordingly, the Court finds plaintiffs have not offered evidence sufficient to support a finding that the failure to start resulting from the ignition-lock defect presents a risk to safety such that the nondisclosure of such defect constitutes a material omission.
b. Inability to Shut off Engine
Plaintiffs also assert that the ignition-lock defect can prevent the engine from being turned off. Ford argues to the contrary. In support thereof, Ford submits the affidavit of Paul Taylor, Ph.D. (“Dr. Taylor”), an expert in the field of mechanical engineering who specializes in the analysis and prevention of failures and accidents. (See Affidavit of Paul Taylor (“Taylor Aff.”) ¶ 2. Dr. Taylor describes his evaluation of the subject ignition locks and concludes there are “two separate circumstances where [the subject ignition locks] do not operate correctly ... [and] neither of these conditions will result in a circumstance where ... the engine cannot be turned off.” (See id. ¶ 5.) 14 As Dr. Taylor further explains, the subject ignition-lock defect cannot result in an inability to turn off the engine because the key cannot become stuck in the “Start” or “Run” positions. (See id. ¶¶ 6, 7, 9.) 15 Plaintiffs offer no expert opinion to the contrary. 16
Rather, plaintiffs offer records from Ford’s AWS database and Ford’s Customer Quality Indicator System (“CQIS”) database, which records, plaintiffs argue, are evidence that ignition-lock
Even if the records were admissible, however, the undisputed evidence demonstrates the vast majority of the reports clearly do not reflect an ignition-lock problem, but, rather, an ignition-switch problem, i.e., an electrical problem, which is not the subject of plaintiffs’ complaint, and the remaining one or two are more consistent with an electrical problem than an ignition-lock problem. (See Micheletti Decl. Ex. A (Bonnici Dep.) at 287-306 (explaining content of each report; distinguishing inability to shut off “engine” as opposed to “ignition”).) 18
Accordingly, the Court finds plaintiffs have not offered evidence sufficient to support a finding that the ignition-lock defect results in an inability to shut off the vehicle’s engine.
3. Replacement Lock Claims
Plaintiffs argue Ford failed to move for summary judgment on plaintiffs “replacement” lock claims and thus is not entitled to summary judgment thereon.
(See
Pis.’ Opp’n at 24:8-11.) As discussed above, however, because plaintiffs have offered no evidence of any misrepresentation made by Ford as to the risk of failure of its ignition locks, nor offered evidence sufficient to support a finding that the ignition locks posed a safety concern, Ford was under no duty to disclose the risk that its ignition locks would fail after the expiration of the warranty period.
See Oestreicher II,
4. Conclusion as to CLRA
Because plaintiffs have failed to offer evidence sufficient to support a finding that the ignition-lock defect posed or poses a risk to safety, to the extent plaintiffs’ claims under the CLRA are based on Ford’s alleged duty to disclose the risk that its original and replacement ignition locks would fail, Ford is entitled to summary judgment. 19
“The elements of an action for fraud and deceit based on concealment are (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”
See Hahn v. Mirda,
Here, because Ford, as discussed above, owed plaintiffs no duty to disclose the risk that its ignition locks would fail, Ford is entitled to summary judgment on plaintiffs’ fraudulent concealment claim.
See Oestreieher II,
Accordingly, to the extent plaintiffs’ fraudulent concealment claim is based on Ford’s alleged duty to disclose the risk of failure of the subject ignition locks, Ford is entitled to summary judgment. 20
C. Ford’s Standard Warranty
Ford argues it is entitled to summary judgment because its standard three-year, 36,000 mile warranty is not unconscionable. Smith contends Ford’s warranty, as applied to the ignition lock, is unconscionable because the warranty is presented in the form of a nonnegotiable contract and contains a durational limitation that Ford enforces with respect to a known, latent defect. (See Pis.’ Opp’n at 46:18-21.) 21
“Unconscionability is ultimately a question of law for the court.”
See Am. Software v. Ali,
Here, Smith fails to offer evidence sufficient to support a finding that the procedural element of unconscionability has been met. In particular, Smith offers no evidence to show he lacked other options for purchasing vehicles from other manu
Smith likewise fails to offer evidence sufficient to support a finding in his favor as to the substantive element of unconscionability. Relying on
Carlson v. General Motors Corp.,
Similarly, Smith’s reliance on
Maniscalco v. Brother Int’l Corp.,
Accordingly, to the extent plaintiffs’ CLRA and other claims are based on the asserted unconscionability of Ford’s standard warranty, Ford is entitled to summary judgment.
Under California’s Secret Warranty Law: “[a] manufacturer shall, within 90 days of the adoption of an adjustment program, subject to priority for safety or emission-related recalls, notify by first-class mail all owners or lessees of motor vehicles eligible under the program of the condition giving rise to and the principal terms and conditions of the program.” See Cal. Civ.Code § 1795.92(a). “Adjustment program” is defined as follows:
“Adjustment program” means any program or policy that expands or extends the consumer’s warranty beyond its stated limit or under which a manufacturer offers to pay for all or any part of the cost of repairing, or to reimburse consumers for all or any part of the cost of repairing, any condition that may substantially affect vehicle durability, reliability, or performance, other than service provided under a safety or emission-related recall campaign. “Adjustment program” does not include ad hoc adjustments made by a manufacturer on a case-by-case basis.
See Cal. Civ.Code § 1790(d).
Here, plaintiffs allege that Ford’s After-Warranty Assistance(“AWA”) was an “adjustment program” as defined under California’s Secret Warranty Law (see TAC ¶¶ 87, 91, 105(a)); see also, Cal. Civ.Code § 1795.90 et seq., and, consequently, that Ford had a duty to disclose such program to owners and lessees of its vehicles. Ford moves for summary judgment, arguing AWA is not an “adjustment program” as defined under the Secret Warranty Law, but rather falls within the statute’s exception for “ad hoc” adjustments. See Cal. Civ.Code § 1795.90(d).
In
Morris v. BMW of North America, LLC,
Here, plaintiffs argue that an “ad hoc” or “case-by-case” adjustments must be “standard less” and that the questions contained in Ford’s materials describing the AWA constitute “eligibility requirements”; thus, plaintiffs conclude, the AWA provides for “more than ad hoc judgments.” (See Pis.’ Opp’n at 50:6-9; see also Bradley Decl. Ex. 3 (Warranty & Policy Manual) at 6 (suggesting questions for dealers to consider before offering “after-warranty assistance”).) Plaintiffs further point to Ford’s replacement thereunder of a large number of locks as further support for their argument that AWA adjustments are not “ad hoc” or “case-by-case.” (See Pis.’ Opp’n at 50:9-10 (noting Ford replaced more than 16,000 Focus ignition locks in its 2000-2006 model years Focus vehicles).) The Court finds plaintiffs’ arguments unpersuasive.
First, as Ford points out, the documents on which plaintiffs rely show AWA applies
Moreover, plaintiffs contention that an “ad hoc” decision must be “standard less” is unsupported by any citation to case or statutory authority. As defined by Black’s Law dictionary, “ad hoc” means “[fiormed for a particular purpose.” See Blacks Law Dictionary 46 (9th ed.2009). Nothing in Ford’s AWA materials is inconsistent with this definition. (See Bradley Decl. Ex. 3 at 6-7 (suggesting matters for consideration that may “help” with determination as to whether customer “may or may not deserve an AWA,” such as: (1) “Has this person been a long-time customer?”; (2) “Has the vehicle been properly maintained?”; (3) “Does the customer like his/ her vehicle aside from the present concern?”; (4) “Was this an especially upset customer?”; (5) “Do you believe AWA would favorably influence this customer’s future new car purchase decision?”).)
Accordingly, because plaintiffs have failed to offer evidence sufficient to support a finding that Ford’s AWA is an “adjustment program,” to the extent plaintiffs’ claims are based on an alleged violation of the Secret Warranty Law, Ford is entitled to summary judgment.
E. UCL
Plaintiffs allege Ford violated California’s Unfair Competition Law by engaging in the conduct on which plaintiffs’ other causes of action are based. The UCL prohibits business acts or practices that are (1) fraudulent, (2) unfair, or (3) unlawful.
See
Cal. Bus. & Prof.Code § 17200;
see also Daugherty,
1. Fraudulent Conduct
In order to state a claim under the UCL for fraudulent business practices, a plaintiff must show that “members of the public are likely to be deceived” by the practices alleged.
See Bardin v. Daimlerchrysler Corp.,
We cannot agree that a failure to disclose a fact one has no affirmative duty to disclose is likely to deceive anyone within the meaning of the UCL .... [I]n order to be deceived, members of the public must have had an expectation or an assumption about the matter in question .... The only expectation buyers could have had about the [defective] engine was that it would function properly for the length of Honda’s express warranty, and it did. Honda did nothing that was likely to deceive the general public by failing to disclose that [the] engine might, in the fullness of time, eventually dislodge the front balancer shaft oil seal and cause an oil leak.
See Daugherty,
Here, as discussed above, plaintiffs have failed to show an affirmative duty to disclose the risk of post-warranty failure of the ignition locks; consequently, plaintiffs have not shown that a reasonable customer could have been deceived, because, as a matter of law, the only expectation customers could have had about the subject ignition locks was that they would function for the length of Ford’s express warranty. Further, as discussed above, plaintiffs have not shown Ford was required to publicize its AWA.
2.Unfair Conduct
Similarly, to the extent plaintiffs’ UCL claim is brought under the “unfair prong,” such claim is unavailing because, as stated in
Daugherty,
“the failure to disclose a defect that might, or might not, shorten the effective life span of an automobile part that functions precisely as warranted throughout the term of its express warranty cannot be characterized as causing a substantial injury to consumers, and accordingly does not constitute an unfair practice under the UCL.”
See id.
at 839,
3.Unlawful Conduct
Lastly, as brought under the “unlawful prong” of the UCL, plaintiffs’ claim is derivative of plaintiffs’ CLRA, fraudulent concealment, and Secret Warranty Law claims, and, consequently, fails as well.
4.Conclusion as to UCL Claims
Accordingly, Ford is entitled to summary judgment on plaintiffs’ UCL claims.
F. Unjust Enrichment
Plaintiffs bring a separate cause of action titled Unjust Enrichment. Unjust enrichment, however, “is not a separate cause of action,” but, rather, must rely on some other claim that is cognizable.
See Jogani v. Superior Court,
Accordingly, Ford is entitled to summary judgment on plaintiffs’ claim for unjust enrichment. 22
CONCLUSION
For the reasons stated above:
1. Ford’s Motion for Summary Judgment as to plaintiff Richard Smith is hereby GRANTED.
IT IS SO ORDERED.
Notes
. By prior order, the previously scheduled hearing on the motions was vacated.
. The following facts are either undisputed or read in the light most favorable to plaintiffs.
. According to Ford’s ignition lock durability test procedures ”[o]ne cycle will consist of key insertion, rotation, and key removal.” (See Fazio Deck Ex. C at SNY000490.)
. The above-referenced manufacturing and design changes were made to ignition locks installed on new Ford Focus vehicles and also to replacement ignition locks for use in warranty repairs and after-market retail sales. (See Bonnici Decl. ¶ 19.)
. Plaintiffs also endeavor to show the percentage of after-warranty replacement locks sold to Focus owners relative to the total population of Focus vehicles. In particular, plaintiffs submit a figure for the total number of 2000 through 2006 model year Focus vehicles sold to Ford dealers (see Micheletti Decl. Ex. 30) as compared with, after-warranty sales figures for ignition locks of the type used in the Ford Focus during the period from 2002 to 2008. (See id. Ex. 31; see also Fazio Decl. Exs. J, K.) As Ford points out, however, because Ford's Escape model vehicles use the same ignition locks as Ford's Focus model vehicles (see Micheletti Decl. Exs. 23, 41), it is not possible, on the evidence available, to determine the number of after-warranty replacement ignition locks that were sold to Focus owners, nor is it possible to compare such sales to the population of Focus vehicles.
. Plaintiffs’ UCL claim is predicated in part on California’s Secret Warranty Law, Cal. Civ.Code § 1795.90-1795.93.
. In some instances, in lieu of reiterating its position in each motion, Ford has incorporated its arguments by reference.
{See
Def.’s
. As discussed below, plaintiffs’ CLRA claim is also based on an allegation that Ford “limit[ed] the warranties applicable to Focus ignition locks in an unconscionable manner.” (See TAC ¶ 99 (citing Cal. Civ.Code § 1770(a)(19)).)
. Plaintiffs’ reliance on cases assertedly holding to the contrary,
see Falk v. General Motors
. Indeed, plaintiffs agree the Safety Act "is among the legal standards against which ignition-lock failure may be measured.” (See Pis.’ Opp'n at 31:4-6.)
. As defined in 49 U.S.C. § 30102, " 'motor vehicle safety’ means the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes nonoperational safety of a motor vehicle.” 49 U.S.C. § 30102(a)(8).
. See Denial of Petition, NHTSA notice, 71 Fed.Reg. 14988 (Mar. 24, 2006) (denying petition where, inter alia, "shifter could not be shifted out of the 'Park’ position”; stating "petitioner has not provided any evidence of a safety-related defect”); Denial of Petition, NHTSA notice, 67 Fed.Reg. 61375 (Sept. 30, 2002) (denying petition where, malfunction reportedly caused, inter alia, "no start”; stating "the ... defect alleged in the petition does not appear to be related to motor vehicle safety within the meaning of our statute”); Denial of Petition, NHTSA notice, 66 Fed. Reg. 55243 (Nov. 1, 2001) (denying petition where, inter alia, reported defect "caus[ed] engine to stall or fail to start”).
.Plaintiffs also offer evidence that in 1983 Alfa Romeo recalled its GTV6 and Spider models due to an electrical problem that "intermittent[ly]” prevented the vehicles from starting. (See Fazio Decl. ¶ 26, Ex. V (stating "inability to start and move the vehicle from the roadway could result in an accident”).) The reason for the recall, however, is not reflected in the document submitted, nor is there any evidence that the recall was required under the Safety Act or otherwise.
.Plaintiffs’ objection to the above opinion under Rule 702 of the Federal Rules of Evidence and
Daubert v. Merrell Dow Pharm., Inc.,
. Further, Dr. Taylor reports, he searched the warranty records in Ford’s AWS database, and “[i]n no instance was a warranty record found where the key was jammed” in those positions (See id. ¶ 10.)
. Indeed, the TAC contains no allegation to the effect that the ignition-lock failure can result in an inability to shut off the engine.
. Accordingly, Ford’s objection to said evidence is hereby sustained.
. The court also notes that although one might speculate as to how an inability to shut off a vehicle's engine potentially could, in some instances, pose a safety risk, none of the reports suggests the customer encountered any danger, nor do plaintiffs offer any other evidence in that regard. To the extent plaintiffs cite to
St. Phard v. Ira Olds Toyota Co., Inc.,
.As discussed below, to the extent plaintiffs' claims under the CLRA are based on an allegation that Ford's standard warranty is unconscionable, such claims likewise fail.
. As discussed below, to the extent plaintiffs' fraudulent concealment claim is based on an alleged duty to disclose a secret warranty program, such claim likewise fails.
. As noted above, Klein purchased her Focus vehicle "as-is” from a third party. (See Klein Dep. 55:19-21.)
. In light of the above rulings, the Court does not address herein Ford’s additional arguments in support of summary judgment.