In September 2017, Plaintiffs filed a putative class action complaint against Electrolux Home Products, Inc. ("Electrolux") alleging defects in a self-cleaning oven Electrolux manufactures. (Doc. 1.) Electrolux filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asserting many of Plaintiffs' claims are insufficiently pled. Plaintiffs filed a brief in opposition, Electrolux filed a reply brief, and the matter was taken under submission. For the reasons set forth below, Electrolux's motion to dismiss is GRANTED in PART and DENIED in PART.
II. FACTUAL BACKGROUND
In June 2015, Plaintiffs purchased a Kenmore Elite oven, manufactured by Electrolux, from Sears for $1,964.99. Plaintiffs purchased this model for its self-cleaning feature. On September 9, 2016, Plaintiffs used the self-cleaning feature for the first time, but after a few hours, discovered that the oven had stopped working. When Plaintiffs contacted Sears, they were told that Sears was aware of the issues with the oven, but the warranty had expired and Plaintiffs would need to pay for the repairs themselves. On inspection of the oven by a Sears' repairperson, the oven's thermostat could not support the tempеrature that was reached when the oven's self-cleaning feature was engaged. The repairperson advised Plaintiffs never to engage the self-cleaning function again. Plaintiffs were charged $184.37 for Sears to install a new thermostat.
Plaintiffs assert claims on behalf of themselves and on behalf of a National and a California State Class which include all persons who "acquired an Electrolux designed and/or manufactured oven range primarily for personal, family, or household purposes ...." (Cmplt., ¶ 27.) Plaintiffs identify the following defect in the oven: "[t]he oven's thermostat burns out while using the self-cleaning feature of the oven. Because of inherent design and manufacturing flaws (the "Defect") known to Electrolux, its Frigidaire and Kenmore oven thermostats are defective." (Cmplt., ¶ 12.)
Electrolux has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), challenging the sufficiency of the claims alleged in the complaint.
III. LEGAL STANDARDS
A motion to dismiss pursuant to Rule 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. Dismissal under Rule 12(b)(6) is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't. ,
To survive a 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly ,
IV. ANALYSIS
A. Economic Loss Rule Precludes Plaintiffs' Strict Liability and Fraudulent Concealment Claims as Currently Pled
Electrolux contends that Plaintiffs' strict liability and fraudulent concealment claims are barred by the economic loss rule, which prohibits a tort claim for purely economic loss. According to Electrolux, Plaintiffs' damages are limited to paying for a repair to the oven and for loss of use resulting from being told not to use the self-cleaning feature on the oven.
Plaintiffs argue they allege more than just economic loss: Plaintiffs and other putative class members have suffered property loss, financial harm, loss of use, and other damages. Plaintiffs maintain that at the pleading stage, this is sufficient. Plaintiffs also assert that the economic loss rule does not preclude their claims because they have a special relationship with Electrolux.
1. The Nature of the Alleged Defect and Resulting Damages
As an initial matter, the complaint's allegations about the nature of the defect and the damages incurred are inconsistent. As it pertains to their own Electrolux oven, Plaintiffs allege a defect with their oven's thermostat such that it cannot withstand the temperatures during the self-cleaning cycle-i.e., the thermostat malfunctions and quits operating (Cmplt., ¶ 12), apparently causing the entirе oven to be unusable until the thermostat is replaced (Cmplt., ¶ 26). After specifically defining the "Defect" as the burning out of the oven's thermostat during the oven's self-cleaning function, the complaint subsequently refers more generally to "Defects" in the oven caused by an unspecified problem in the "electrical system" creating a fire hazard (Cmplt., ¶¶ 26, 31, 85). Plaintiffs apparently kept their oven even after the thermostat was repaired (Cmplt. ¶¶ 23-24), and never allege they were informed or believed it presented a safety or fire hazard. They state only that the repair technician told them never to engage the self-cleaning function, presumably because it would again damage the thermostat. Later in the complaint, however, there are allegations that the "Defects would cause their ovens to fail, combust, and catch fire-damaging the ovens and other property,
The nature of the alleged defect and the problems it purportedly cause are dirеctly related to assessing whether the economic loss rule applies, what problem Electrolux was allegedly aware of before the product was sold to Plaintiffs, and what may or may not be covered by any implied or express warranty. The Court will evaluate Plaintiffs' claims on the basis of the defect as they define it and allege to have experienced it (design and manufacturing defects causing the oven's thermostat to burn out while using the self-cleaning feature of the oven (Cmplt., ¶ 12) ). Subsequent allegations pertaining to different, unspecified defects in the oven's electrical system that posed a safety hazard or caused damage to property other than the oven will not be considered.
2. Economic Loss Rule Precludes Plaintiffs' Claims
In California, under the "economic loss rule," a manufacturer or distributor may be strictly liable or liable for negligence for injury to property caused by a defective product, but is not liable in tort for purely economic loss. The product defect must cause damage to other property, that is, property оther than the product itself. Jimenez v. Super. Ct. ,
Plaintiffs' damages from the thermostat failure during the self-cleaning cycle are limited to economic loss, precluding their strict liability and fraudulent concealment claims. Arguing there are damages alleged beyond purely economic loss, Plaintiffs point to allegations of "property loss, financial harm, loss of use, and other damages," but the only property loss Plaintiffs alleged was to the oven itself, which does not constitute more than economic loss. Jimenez ,
Plaintiffs maintain their claims are exempt from the economic loss rule because they have a special relationship with Electrolux. An exception to the economic loss rule exists where the relationship between the parties is such that it would be equitable to impose a duty of care to avoid purely economic loss. Ott v. Alfa-Laval Agri, Inc. ,
Whether a transaction is intended to affect the plaintiff in a particular manner under the first factor of the J'Aire test is a critical foundational requirement for a special relationship. Ott ,
In a typical retail transaction, the product is intended to affect a particular purchaser in the same manner as all other retail buyers, not in a manner particular to any individual buyer. Plaintiffs have alleged no facts showing the transaction was intended to affect Plaintiffs specifically. There is no allegation Electrolux was aware of Plaintiffs' oven purchase, and no suggestion that the oven was intended to affect Plaintiffs in any way different from any other purchaser. As Plaintiffs do not allege Electrolux intended to affect them in a particular manner, distinct from other retail buyers, a special relationship with Electrolux is foreclosed. Platte Anchor Bolt, Inc. v. IHI, Inc. ,
Finally, Plaintiffs assert the economic loss rule does not apply to their claim of fraudulent concealment pursuant to Robinson Helicopter Co., Inc. v. Dana Corp. ,
While the clutch failures did not result in any helicopter accidents, injury, or property damage, Robinson was required to recall all the faulty clutch assemblies. Robinson sought replacement parts from the defendant, the defendant refused to contribute to the replacement costs, and Robinson filed suit for breach of contract, misrepresentation, and fraud. Id. at 987,
Plaintiffs do not articulate any affirmative misrepresentations Electrolux made; they contend instead that Electrolux concealed the oven's defect. The lack of an identifiable affirmative misrepresentation forecloses the narrow exception envisaged in Robinson . Further, Plaintiffs were not exposed to any personal injury damages independent of the economic loss that was foreseeable from a defective oven-the oven purportedly did not function until the
In sum, Plaintiffs' claims in strict liability and fraudulent concealment (Counts V, VI, and VII) as currently pled are precluded by the economic loss rule. Due to the discrepancies in the allegations regarding the nature of the oven's defect and the type of damages incurred, Plaintiffs will be given an opportunity to amend these claims if, and only if, they can cure the deficiencies as noted above.
B. Plaintiffs' Fraud-Based Claims (Counts VII, VIII, IX, and X) Are Not Pled with Specificity
Plaintiffs' fraud-based claims include Count VII (common law fraudulent concealment),
1. Elements of Plaintiffs' Fraud-Based Claims
Under California law, the elements of fraud include (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Robinson Helicopter Co. ,
The UCL prohibits unfair competition, which it broadly defines as including "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising."
The CLRA prohibits certain "unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer."
The FAL proscribes "mak[ing] or disseminat[ing] ... any statement ... which is untrue or misleading, and which is known, or by the exercise of reasonable care should be known, to be untrue or misleading ..." "with intent directly or indirectly to dispose of real or personal property."
Electrolux argues Plaintiffs' fraud-based claims lack the requisite specificity to show how Electrolux had actual knowledge of the purported defect in its ovens, what specific misrepresentations or omissions were made by Electrolux, and how Plaintiffs relied on these misrepresentations or omissions to their detriment.
2. Misrepresentation or Omission/Concealment Allegations
Electrolux argues Plaintiffs have failed to articulate with any degree of specificity either an affirmative misreprеsentation or concealment or omission by Electrolux. Plaintiffs maintain their fraud-based claims are predicated on fraudulent omissions or concealment, a type of misrepresentation subject to a "somewhat relaxed" 9(b) standard such that a plaintiff only need set forth an explanation as to why the omission was false or misleading, which Plaintiffs argue they have sufficiently alleged.
(a) Plaintiffs' Fraudulent Concealment, CLRA, and UCL Claims Insufficiently Plead an Omission/Concealment
Alleging fraudulent omission or concealment is somewhat different from pleading an affirmative misrepresentation in that a plaintiff cannot generally plead either the specific time of an omission or the place it occurred. Falk v. General Motors ,
Plaintiffs allege the thermostat in Electrolux's oven is defective and "burns out" while using the self-cleaning function. (Cmplt., ¶ 12, 13.) Plaintiffs claim Electrolux knew its ovens contained this defect but concealed this fact from consumers. (Cmplt. ¶ 92.) As discussed above, the nature of the defect, and thus the nature of the information Electrolux concealed, is not clear and thus not specific. While Plaintiffs allege and define their oven defect as one pertaining to the oven thermostat causing it to fail during the self-cleaning function, Plaintiffs later appear to аllege a broader "electrical defect" that caused ovens to combust and catch fire, melt, and cause damage to other property besides the oven itself, creating a safety hazard. (Compare Cmplt., ¶ 12 (defining defect as "oven's thermostat burns out while using the self-cleaning feature of the oven") with ¶ 90, 92 (defect in "the electrical system").) Plaintiffs themselves, however, did not allege they experienced an electrical defect in the oven that caused a safety and fire hazard-in fact, Plaintiffs apparently fixed their oven's thermostat and kept the oven, albeit on the admonition not to engage the self-cleaning function without risk of damaging the thermostat again. After defining the "Defect" (Cmplt., ¶ 12), the complaint then refers inconsistently to "Defects" (¶¶ 15, 16). Paragraph 27 uses Defect and Defects interchangeably, and Paragraph 31 returns to claiming there is a "uniform Defect." It is possible the allegations can be clarified, but as the complaint is pled, it is difficult to know the specific nature of what defect or defects Electrolux allegedly concealed from Plaintiffs. For this reason, the Court cannot conclude that the circumstances of Electrolux' alleged omission or what information Electrolux withheld from consumers is pled with specificity. Plaintiffs' fraud-based omission/concealment claims are insufficiently pled for this reason.
(b) Plaintiffs' FLA Claim Does Not Plead An Affirmative Misrepresentation
As with Plaintiffs' other fraud-based claims, Electrolux argues Plaintiffs have failed to identify any misrepresentations or untrue and misleading statements to support their FAL claim. Plaintiffs maintain their primary theory is predicated on an omission/concealment and argue it can be sufficiently pled by stating a reason why the omission was false and misleading. Even if the omission/concealment was not identified with requisite specificity, Plaintiffs contend they have adequately alleged Electrolux made misleading statements in the oven's express warranty.
A FAL claim is not cognizable when based solely on an omission of material information. See, e.g. , Norcia v. Samsung Telecomms. Am., LLC , No. 14-cv-00582-JD,
3. Plaintiffs' Actual Knowledge Allegations are Insufficient
Electrolux argues Plaintiffs have not sufficiently alleged its actual knowledge of the defect with the self-cleaning feature and the thermostat. Plaintiffs maintain they have thoroughly alleged that Electrolux knew or should have known of the defect through (1) customer complaints posted on a website; (2) early warning systems, statistical analyses, audits, after-market testing, monitoring of warranty statistics and service call rates, tracking of returned products and parts, investigating of product faults, monitoring call center consumer complaints, and monitoring consumer complaints from other sources.
The Ninth Circuit's decision in Wilson v. Hewlett-Packard Co. ,
The Wilson court contrasted actual knowledge allegations in several cases, first comparing cases where the allegations were sufficient. For example, in Cirulli v. Hyundai Motor Co. , No. 08-cv-0854-AG-MLGx,
Here, Plaintiffs allege Electrolux had knowledge of the defect, in part, through consumer complaints posted on a consumer affairs website. Electrolux argues it had no reason to know of these complaints because it has no connection to this consumer affairs website nor have Plaintiffs alleged such a connection. Moreover, Electrolux maintains, very few of the complaints are relevant to the thermostat defect Plaintiffs experienced with their oven, and over half the complaints were posted after Plaintiffs had purchased Electrolux's oven.
Consumer complaints or consumer reports of defects at a relevant time and in a manner that would provide notice of the defect to the defendant may be sufficient to show actual knowledge. Kowalsky v. Hewlett-Packard Co. ,
Plaintiffs also allege Electrolux obtained notice of the oven's defect through its own early warning systems and statistical analyses, and because Electrolux conducts a significant amount of after-market testing that should have informed it that the ovens had a defective electrical system. (Cmplt., ¶ 17.) While Plaintiffs' allegations are more than speculative assertions that Electrolux has knowledge of the defect due to its access to aggregate data or its "superior position," allegations found lacking in Wilson , they are too generic and non-specific to meet the requirements under Rule 9(b). Plaintiffs allege Electrolux knew of the defect because of its "early warning systems and statistical analyses that it employs, or should have employed ...." (Cmplt., ¶ 16.) Not only does this allegation lack specificity as to what early warning system or analyses were employed, it
Finally, Plaintiffs allege that Electrolux (1) monitors warranty statistics and service call rates to detect problems as soon as customers begin to experience them, (2) tracks returned products and parts to investigate faults and reduce warranty claims rates, and (3) employs quality engineers to monitor customer complaints from Electrolux's call center to detect problems. However, there are no allegations showing whether complaints were made to Electrolux's call center, or whether customers were otherwise reporting problems to Electrolux or returning the product or parts to Electrolux. To the extent these allegations are made on "information and belief" as noted in the complaint, this lacks the requisite specificity because there is no explanation upon what the belief is founded. Shroyer v. New Cingular ,
Plaintiffs' claims sounding in fraud (fraudulent concealment, CLRA, UCL, and FAL) lack the requisite specificity in alleging Electrolux had actual knowledge of the purported defect in its ovens. The customer complaints on a consumer affairs website have not been linked to Electrolux to show how Electrolux would have necessarily been aware of these complaints, and the allegations regarding systems or testing that Electrolux may or may not have had in place lack specificity and detail about what testing was performed, when such testing was done, or any allegation showing that complaints or defects were reported to Electrolux during the period before Plaintiffs purchased their oven.
4. Actual Reliance Allegations Are Insufficient
Electrolux argues Plaintiffs' actual reliance allegations for each of their fraud-based claims are inadequate because they fail to explain what marketing materials, statements, or representations Plaintiffs relied upon in making their purchasе of Electrolux's product. Reliance can be shown in a fraudulent omission case by establishing that "had the omitted information been disclosed, [the plaintiff] would have been aware of it and behaved differently." Boschma v. Home Loan Center, Inc. ,
Plaintiffs allege if they, or any of the class members, had known about the defect, they would not have purchased their oven. (Cmplt., ¶¶ 26, 96.) Plaintiffs' allegations about the nature of the defect are inconsistent, and their allegations of reliance on Electrolux's misrepresentations or omissions are mixed with other allegations about a seemingly different type of defect in the oven. Without a specific and clear allegation about the nature of the defect, it is unclear what was concealed from Plaintiffs about the product and whether that information would influence the consumers' decision to buy the product. For this reason, thе actual reliance allegations are insufficient.
Count IV of the complaint seeks injunctive relief, but injunctive relief is a remedy not an independent cause of action and is subject to dismissal as such. City of South Pasadena v. Dep't of Transp. ,
D. Warranty-Based Claims
1. Plaintiff's MMWA Claim
The Magnuson-Moss Warranty Act ("MMWA"), codified at
Plaintiffs allege that Electrolux provided a written warranty to them and the putative class that warranted the oven would be free from defects in materials or workmanship for а year from the original date of purchase including to those customers who purchased extended warranties that added an additional three years' guarantee of non-defective material workmanship. (Cmplt., ¶ 43.) According to Plaintiffs, Electrolux breached the warranty obligations by failing to repair or replace the oven at no charge.
Electrolux asserts Sears provided the warranty to Plaintiffs, and since Electrolux did not provide the warranty, Plaintiffs' express warranty claim against it fails.
With few exceptions, the Court must accept as true a complaint's well-pleaded facts in considering a motion to dismiss. Swierkiewicz v. Sorema N.A. ,
Electrolux also argues the warranty does not cover design defects, which is the sole type of defect Plaintiffs allege. Plaintiffs maintain they have alleged a materials defect covered by the warranty's guarantee of materials and workmanship. The complaint sufficiently alleges the thermostat defect was both a design and manufacturing flaw. (Cmplt., ¶¶ 12, 18 (defect caused by inherent design and manufacturing flaws).) Plaintiffs' warranty claim cannot, at this stage, be considered limited only to a design defect. While the nature of the speсific defect alleged should be clarified in an amended complaint, the MMWA claim is pled sufficiently.
2. Plaintiffs' Implied Warranty Claims (Count III and XI)
Plaintiffs allege two implied warranty claims. In Count III, Plaintiffs allege an implied warranty of merchantability under the California Uniform Commercial Code. In Count XI, Plaintiffs state a claim for violation of the California Song-Beverly Consumer Warranty Act. Electrolux argues these claims fail because Plaintiffs have not alleged facts showing their oven was unfit for its ordinary purpose of cooking food.
The Song-Beverly Consumer Warranty Act is a "remedial measure intended for the protection of consumers and should be given a construction consistent with that purpose." Brand v. Hyundai Motor Am. ,
The implied warranty of merchantability requires that "every sale of consumer goods that are sold at retail in [California] shall be accompanied by the manufacturer's and the retail seller's implied warranty that the goods are merchantable."
(a) Lack of Fitness for Ordinary Purpose Adequately Alleged
Electrolux maintains that despite the alleged problem with the self-cleaning feature, the oven still performed its basic function to safely and reliably cook food, which negates Plaintiffs implied warranty claim. According to Electrolux, Plaintiffs used their oven for approximately a year after they purchased it and then continued to use the oven after the thermostat problem emerged and was repaired. Plaintiffs respond that the oven was not fit for its ordinary purpose because
While a defective product that causes a safety hazard will generally render that product unfit for its ordinary purpose,
Nevertheless, it appears Plaintiffs oven was unusable for its ordinary purpose between the time the defect manifested during use of the self-cleaning cycle and when Plaintiffs had the thermostat repaired by Sears. (Cmplt., ¶ 21 (after engaging the self-cleaning function, Plaintiffs discovered the oven had stopped working). The inability of the oven to properly heat and cook food after the thermostat was broken by the self-cleaning function rendered the oven unfit for its ordinary purpose. After the thermostat was repaired, Plaintiffs were told never to engage the self-cleaning function again. While the self-cleaning function may be an ancillary feature of the oven, the situation here is different from cases where an ancillary feature itself does not operate as promised, but the product still operates in a safe and reliable manner. For example, as long as a car can provide safe, reliable transportation, it is generally considered merchantable even if certain features such as a navigation system, do not function properly. See generally In re MyFord Touch Consumer Litig. ,
(b) Implied Warranty Claim Under California Commercial Code Fails for Lack of Vertical Privity
Electrolux argues Plaintiffs' implied warranty claim (Count III) fails because Plaintiffs allege they bought their oven from Sears, so there is no vertical privity between Plaintiffs and Electrolux.
Although the Beverly-Song Consumer Warranty Act allows for an implied warranty claim regardless of privity, implied warranty claims under the California Commercial Code still require privity
Although the parties do not dispute the privity rule applies to Plaintiffs' implied warranty claim under the California Commercial Code, Plaintiffs assert they arе third-party beneficiaries of the agreement between Electrolux, the manufacturer of the oven, and Sears, the distributor from whom Plaintiffs purchased the oven. Plaintiffs maintain third-party-beneficiary status is an exception to the rule of privity. Electrolux argues the third-party beneficiary exception is not one recognized under California law in the consumer warranty context, and the Ninth Circuit's decision in Clemens v. DaimlerChrysler Corp. ,
In Clemens , an automobile purchaser alleged DaimlerChrysler had breached express and implied warranties in the sale of a Dodge Neon containing defective head gaskets. The implied warranty claim was dismissed by the district court for lack of privity, and the Ninth Circuit affirmed reasoning that while some particularized exceptions to privity exist, neither the existing exceptions, nor the "similar equities" argued by the plaintiff, applied. The court declined the plaintiff's invitation to create a new privity exception as the "California courts [had] painstakingly established the scope of the privity requirement under California Commercial Codе section 2314," and no new exception could be created by a federal court sitting in diversity."
District courts in California are split on a third-party beneficiary exception to privity in the consumer warranty context. Some courts have interpreted Clemens to foreclose application of the third-party-beneficiary exception to the privity requirement for implied warranty claims.
The Court is persuaded that Clemens forecloses a third-party-beneficiary exception to the rule of privity. As discussed in Seagate Tech. LLC Litig. ,
V. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Electrolux's Motion to Dismiss the following claims is DENIED:
a. Count I: Violation of the Magnuson-Moss Warranty Act;
b. Count XI: Violation of the Song-Beverly Consumer Warranty Act;
2. Electrolux's Motion to Dismiss the following Claims is GRANTED with leave to amend : Counts V, VI, VII, VIII, IX, and X;
3. Electrolux' Motion to dismiss the following claims is GRANTED without leave to amend :
a. Count III: Breach of the Implied Warranty;
b. Count IV: Injunctive Relief;13 and
4. An amended complaint shall be filed within 14 days from the date of this order.
IT IS SO ORDERED.
Notes
Plaintiffs seek to amend the complaint to clarify certain allegations, including the date when the oven was repaired, and the terminology used in describing the oven as a "range." (Doc. 10, 5:13, n. 1-2.) The Court also notes Plaintiffs allege the oven's defect rendered the ovens unusable in "their essential purpose as phones." (Cmplt., ¶ 106). As the complaint requires amendment for other reasons, Plaintiffs will have opportunity to cure these issues, including clarification regarding the nature of the oven's defect or defects.
When Plaintiffs describe how their claim is typical of the class, they add allegations not included in alleging their own experience with their Electrolux oven: "Plaintiffs and all Class Members own ... an oven ... with a uniform defect that makes [them] immediately dangerous upon purchase and causes them to fail within their expected useful lives and burn, melt, catch on fire, and burn areas surrounding the [ovens] in consumers' homеs." (Cmplt., ¶ 31.) Plaintiffs had their oven thermostat repaired in 2016, but there is no allegation they removed the oven from their house after discovery of the defect, or that it posed a safety risk before or after it was repaired. Indeed, in alleging the self-cleaning function caused the thermostat to stop working, Plaintiffs do not allege any melting of the oven, risk of fire damage, or other safety hazards posed by the defect causing the thermostat to stop functioning. They allege only that the Sears repairperson told them not to engage the self-cleaning function again. (Cmplt., ¶¶ 23, 26.) The allegations about the nature of the purported defect and the potential damages and safety risks associated with the defect are not consistent between Plaintiffs' experience and the class allegations.
Superseded by Right to Repair Act, California Civil Code § 896, under which manufacturers of individual products could be liable to homeowners for economic losses resulting from violations of the Act's standards. Thus, the common law duty assessed under J'Aire in that instance was supplanted by a statutory duty under the Act. Greystone Homes, Inc. v. Midtec, Inc. ,
Plaintiffs' Count VII for fraudulent concealment is dismissed pursuant to the economic loss rule, as discussed in the previous section. The lack of specificity discussed in this section is another deficiency Plaintiffs must cure in any amended claim for fraudulent concealment.
A claim under the UCL's fraud prong is distinct from common law fraud and does not require a plaintiff to plead and prove the elements of a tort. Boschma v. Home Loan Center, Inc. ,
Plaintiffs claim the statements about the oven were false because the oven was sold with a "Defect" (Cmplt., ¶ 124), but the specific defect Plaintiffs is claiming is unclear.
The parties' argument about actual knowledge exemplifies again the vacillation in the complaint with respect to the definition of the "Defect." Even assuming the complaints were made on a forum Electrolux was connected to and would hаve or should have known about, only two of the consumer complaints deal with the thermostat and the self-cleaning function. The other complaints reference problems with the electrical "motherboard" or the electrical system in the oven generally, and do not appear connected to the self-cleaning function burning out the thermostat. (Cmplt., ¶ 31.)
Electrolux's request for judicial notice of the "Sears' Use & Care Guide for the Kenmore Elite Electric Built-In Oven" for the model number of the Kenmore oven Plaintiffs allegedly purchased is granted. Plaintiffs have referenced the document in their complaint, and do not dispute the authenticity of the document. Fed. R. Evid. 201(b)(2) ; See Parrino v. FHP, Inc. ,
Roberts v. Electrolux Home Prods. Inc. , No. 12-cv-1644-CAS (VBKx),
See, e.g., Long v. Graco Children's Prods. Inc. , 13-cv-01257-WHO,
In re MyFord Touch Consumer Litig. ,
See, e.g. , Cartwright v. Viking Industries, Inc. ,
This does not preclude Plaintiffs from seeking injunctive relief as a remedy.