William Burdt v. Whirlpool Corporation

Northern District of California, cand-4:2015-cv-01563

ORDER GRANTING {{21}} Motion to Dismiss First Amended Class Action Complaint. Signed by Judge Jeffrey S. White on August 5, 2015. (jswlc3, COURT STAFF)

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6 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 WILLIAM BURDT, 10 Plaintiff, No. C 15-01563 JSW 11 v. United States District Court For the Northern District of California 12 WHIRLPOOL CORPORATION, ORDER GRANTING MOTION TO DISMISS 13 Defendant. / 14 15 Now before the Court is the motion to dismiss filed by defendant Whirlpool Corporation 16 ("Whirlpool"). Having carefully reviewed the parties' papers and considered their arguments 17 and the relevant legal authority, the Court GRANTS Whirlpool's motion to dismiss with leave 18 to amend. 19 BACKGROUND 20 On or around December 20, 2013, Plaintiff moved into the Trilogy Development in 21 Brentwood, California. (First Amended Complaint ("FAC"), ¶ 11.) Plaintiff selected a Jenn-Air 22 model JJW3830WS double oven from a list of appliances available to residents. (Id.) The oven 23 was equipped with a set of racks that included a roll-out rack, offset rack, and flat rack. (Id.) 24 On December 15, 2014, Plaintiff's wife used the roll-out rack to cook. When she 25 checked on the food, the roll-out rack slipped off the rack guides and collapsed, causing the dish 26 in which she was cooking to tip over. (Id. at ¶ 12.) The contents of the dish spilled onto 27 Plaintiff's wife and gave her first and second degree burns on her left arm and back. (Id.) The 28 load on the rack weighed less than twenty-five pounds. (Id.) 6 1 Plaintiff brings this proposed class action on behalf of himself and other Jenn-Air oven 2 owners. (Id. at ¶ 20.) Plaintiff alleges that owners of other Jenn-Air model ovens ("Subject 3 Ovens") have reported problems with oven racks becoming dislodged. (Id. at ¶ 13.) Plaintiff 4 further alleges that these individuals have called Whirlpool's customer complaint line to advise 5 Whirlpool of the problem. (Id.) Whirlpool tracks customer complaints and feedback from 6 dealerships and other repair facilities. (Id.) Whirlpool also tracks warranty requests and the sale 7 of replacement parts such as the roll-out racks at issue here. (Id.) In addition, there is a 8 YouTube video that demonstrates how the roll-out rack can dislodge. (Id. at ¶ 4.) Whirlpool 9 also engages in pre-release testing and has subsequently investigated the Jenn-Air model's 10 tendency to have racks slip or become dislodged under normal conditions. (Id. at ¶ 14.) Plaintiff 11 contends that Whirlpool's testing would have shown that the Subject Ovens are defective and United States District Court For the Northern District of California 12 the racks have a tendency to slip or become dislodged under normal conditions. (Id. at ¶¶ 14, 13 15.) 14 Dislodged oven racks pose a safety risk that Whirlpool does not disclose. (Id. at ¶ 15.) 15 Plaintiff alleges that Whirlpool had knowledge superior to that of the general public of the 16 safety risk and contends that Whirlpool should have disclosed the defect. (Id.) Plaintiff also 17 alleges that Whirlpool knowingly and purposefully sold the defective ovens. (Id.) If Whirlpool 18 had disclosed the defect, Plaintiff alleges he and members of the class would not have 19 purchased the Subject Ovens or would not have purchased them at the price paid. (Id.) 20 Based upon these allegations, Plaintiff brings this proposed class action for violations of 21 the Consumer Legal Remedies Act ("CLRA"), California Civil Code §§ 1750, et seq., the Song- 22 Beverly Consumer Warranty Act ("Song-Beverly Act"), California Civil Code §§ 1790, et seq., 23 and the California Unfair Competition Law ("UCL"), California Business & Professions Code 24 §§ 17200, et seq. Whirlpool moves to dismiss based on Federal Rules of Civil Procedure 25 12(b)(6) and 9(b). The Court shall address further facts as necessary in the order. 26 27 28 2 6 1 ANALYSIS 2 A. Legal Standards on Motion to Dismiss. 3 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 4 complaint fails to state a claim upon which relief can be granted. The Court's "inquiry is limited 5 to the allegations in the complaint, which are accepted as true and construed in the light most 6 favorable to the plaintiff." Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). 7 "While legal conclusions can provide the framework of a complaint, they must be supported by 8 factual allegations." Iqbal, 556 U.S. at 664. "Dismissal is proper where there is no cognizable 9 legal theory or an absence of sufficient facts to support a cognizable legal theory." Navarro v. 10 Block, 250 F.3d 729, 732 (9th Cir. 2001). Even under the liberal pleading standard of Federal 11 Rule of Civil Procedure 8(a)(2), "a plaintiff's obligation to provide the 'grounds' of his United States District Court For the Northern District of California 12 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of 13 the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. 14 Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief 15 above the speculative level." Id. 16 Under Twombly, plaintiffs must move "their claims across the line from conceivable to 17 plausible." Id. at 570. In order to "survive a motion to dismiss, a complaint must contain 18 sufficient factual matter, accepted as true 'to state a claim to relief that is plausible on its face.'" 19 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). If the allegations are insufficient to 20 state a claim, "a district court should grant leave to amend even if no request to amend the 21 pleading was made, unless it determines that the pleading could not possibly be cured by the 22 allegation of other facts." Cook, Perkiss & Liehe v. N. Cal. Collection Service, 911 F.2d 242, 23 247 (9th Cir. 1990). "The standard for granting leave to amend is generous." United States v. 24 Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police 25 Dept., 901 F.2d 696, 701 (9th Cir. 1990)). If there is "no evidence of delay, prejudice, bad faith, 26 or previous amendments. . . leave to amend turns on whether amendment would be futile." Id. 27 In addition, when a plaintiff alleges fraud, Federal Rule of Civil Procedure 9(b) requires 28 the plaintiff to state with particularity the circumstances constituting fraud, including the "'who, 3 6 1 what, when, where, and how'" of the charged misconduct. See United States ex rel Ebeid v. 2 Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (quoting Vess v. Ciba Geigy Corp. USA, 317 F.3d 3 1097, 1106 (9th Cir. 2003)). "[T]he plaintiff must set forth what is false or misleading about a 4 statement, and why it is false." Ebeid, 616 F.3d at 998 (omitting internal quotations and 5 citations). 6 B. Whirlpool's Motion to Dismiss. 7 1. Plaintiff Fails to State a Claim Under the Consumer Legal Remedies Act Because He Did Not Sufficiently Allege That Defendant Was Aware of a 8 Defect at the Time of Sale. 9 Whirlpool asserts that Plaintiff fails to allege that the company had pre-sale knowledge 10 of the alleged defect. Plaintiff alleges that Whirlpool violated the CLRA "by representing that 11 the Subject Ovens are of a particular standard or quality when they are not of that standard or United States District Court For the Northern District of California 12 quality," and "by representing that the Subject Ovens have characteristics, uses and benefits 13 which they do not have." (FAC, ¶¶ 41-42.) Plaintiff claims that Whirlpool "actively concealed" 14 the material fact that the oven was defective and that the roll-out racks were prone to dislodge. 15 (Id. at ¶ 40.) Plaintiff alleges that if he had "been informed of the Subject Ovens' tendency to 16 have the racks slip and dislodge, [he] would not have purchased the [oven] at the premium price 17 advertised for the purportedly luxury appliance." (Id. at ¶ 44.) 18 "The CLRA prohibits 'unfair methods of competition and unfair or deceptive acts or 19 practices undertaken by any person in a transaction intended to result or which results in the 20 sale or lease of goods or services to any consumer.'" Wilson, 668 F.3d at 1140 (citing Cal. Civ. 21 Code § 1770(a)). "Conduct that is 'likely to mislead a reasonable consumer' violates the 22 CLRA." Id. (citing Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 680 (2006)). 23 Provisions of the CLRA prohibit "representing that goods or services have. . . characteristics. . 24. which they do not have," and "representing that goods or services are of a particular standard, 25 quality, or grade. . . if they are another." Id. at 1141 (quoting Cal. Civ. Code § 1770(a)(5), (7)). 26 A failure to disclose a material fact can constitute actionable fraud under the CLRA in 27 four circumstances: "(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) 28 when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) 4 6 1 when the defendant actively conceals a material fact from the plaintiff; and (4) when the 2 defendant makes partial representations but also suppresses some material fact." Falk v. 3 General Motors Corp., 496 F. Supp. 2d 1086, 1095 (quoting LiMandri v. Judkins, 52 Cal. App. 4 4th 326, 337 (1997)). "In order for the concealed fact to be 'material,' plaintiffs had to show 5 that 'had the omitted information been disclosed, one would have been made aware of it and 6 behaved differently.'" Wilson, 668 F.3d at 1142 (quoting Falk, 496 F. Supp. 2d at 1095)). 7 "Materiality for CLRA claims, is judged by the effect on a 'reasonable consumer.'" Falk, 496 F. 8 Supp. 2d at 1095 (citing Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 9 1351, 1360 (2003)). "Information is material if its disclosure would have caused a reasonable 10 consumer to behave differently." In re Sony Grand Wega KDF-E A10/A20 Series Rear 11 Projection HDTV Television Litigation, 758 F. Supp. 2d 1077, 1095 (S.D. Cal. 2010) (citing United States District Court For the Northern District of California 12 Falk, 496 F. Supp. 2d at 1095). Under the CLRA, "materiality is also linked to safety 13 considerations." Id. at 1096. If the materiality factors from Falk are applied, "for the omission 14 to be material, the failure [to disclose] must [still] pose safety concerns." Wilson, 668 F.3d at 15 1142 (citing Smith v. Ford Motor Co., 749 F. Supp. 2d 980, 987 (N.D. Cal. 2010)). To survive a 16 motion to dismiss, plaintiffs must "sufficiently allege a causal connection between the alleged 17 design defect and the alleged safety hazard." Id. at 1143. 18 "California courts have generally rejected a broad obligation to disclose." Id. at 1141. 19 "Under the CLRA, plaintiffs must sufficiently allege that a defendant was aware of a defect at 20 the time of sale to survive a motion to dismiss." Id. at 1145 (citing In re Sony HDTV, 758 F. 21 Supp. 2d at 1095 ("Sony had no duty to disclose facts of which it was unaware.") "In order to 22 state a claim under the CLRA for failing to disclose a safety defect, Plaintiffs must allege 1) the 23 existence of a design defect; 2) the existence of an unreasonable safety hazard; 3) a causal 24 connection between the alleged defect and the alleged safety hazard; and 4) that Defendant 25 knew of the defect at the time a sale was made." Grodzitsky v. American Honda Motor Co., 26 Inc., 2013 WL 690822, at *6 (C.D. Cal. Feb. 19, 2013) (citing Wilson, 668 F.3d at 1143-46.) 27 "By themselves, [customer complaints] are insufficient to show that [the manufacturer] had 28 knowledge [of the defect]." Wilson, 668 F.3d at 1147 (quoting Berenblat v. Apple, Inc., 2010 5 6 1 WL 1460297, at *9 (N.D. Cal. Apr. 9, 2010)). "Courts have rejected undated customer 2 complaints offered as a factual basis for a manufacturer's knowledge of a defect because they 3 provide no indication whether the manufacturer was aware of the defect at the time of sale." Id. 4 Plaintiff cites to a line of California district court cases that have generally held that the 5 totality of detailed allegations of a defendant's access to sources such as pre-sale test data, 6 consumer complaints, warranty data, dealer complaints, repair data, and data regarding the 7 purchase of replacement parts are sufficient to show a defendant's pre-sale knowledge of a 8 defect and survive a motion to dismiss. See Cirulli v. Hyundai Motor Co., 2009 WL 5788762, at 9 *4 (C.D. Cal. June 12, 2009) (holding that plaintiff sufficiently alleged that defendant knew of 10 the defect at the time the defective product was sold because defendant constantly tracked 11 National Highway Traffic Safety Administration data prior to the date of sale that would have United States District Court For the Northern District of California 12 explicitly disclosed the defect); Avedisian v. Mercedes-Benz USA, LLC, 2013 WL 2285237, at 13 *7 (C.D. Cal. May 22, 2013) (holding that plaintiff sufficiently alleged defendant's pre-sale 14 knowledge of an alleged defect when consumer provided dated customer complaints along with 15 other allegations that defendant learned of the alleged defect through pre-release testing data, 16 dealer complaints, further testing, and warranty data among other sources); Falk, 496 F. Supp. 17 2d at 1096 (holding that a dated record of complaints were sufficient to demonstrate defendant's 18 superior knowledge of an alleged defect). 19 In Wilson, a case distinguishable from Plaintiff's cited cases, the plaintiffs alleged that 20 the defendant had pre-sale knowledge of a design defect because the company had "'access to 21 the aggregate information and data regarding the risk of overheating' and there had been 22 another lawsuit involving the same defect on a different model of laptop computers." Wilson, 23 668 F.3d at 1146. This allegation was deemed to be "speculative" because it did not "suggest 24 how any tests or information could have alerted HP to the defect." Id. at 1147. The plaintiffs 25 had "also submitted several customer complaints to support their allegation that HP had 26 knowledge of the defect." Id. at 1146. The submitted complaints were undated or were made 27 subsequent to the plaintiffs' purchase of the allegedly defective product. Id. at 1148. The Ninth 28 6 6 1 Circuit held that these allegations were insufficient to support the inference that the defendant 2 knew about a design defect at the time of the sale of the product. Id. at 1145. 3 Similarly to Wilson, here Plaintiff alleges that "individuals have called Whirlpool's 4 customer complaint line advising Whirlpool of the problem when using the oven and the racks 5 in their intended use." (FAC, ¶ 13.) Plaintiff does not submit any specific complaints and does 6 not provide any dates for the alleged and unspecified numerous complaints. Plaintiff also claims 7 that Whirlpool engaged in "extensive pre-release testing that would have shown that the racks 8 in the Subject Ovens are prone to slipping or becoming dislodged and falling" without 9 specifically suggesting how any tests would have alerted Whirlpool to the alleged defect. (Id. at 10 ¶ 14.) Without the necessary factual support, Plaintiff's allegations are merely speculative. 11 Furthermore, without any dates attached to the supposed number of complaints lodged with United States District Court For the Northern District of California 12 Whirlpool, Plaintiff cannot show pre-sale knowledge of the alleged defect. See, e.g., Wilson, 13 668 F.3d at 1147. 14 Plaintiff cites to a number of cases that are factually distinguishable from the present 15 matter. For example, in Cirulli, the plaintiff alleged that the defendant "constantly tracked" the 16 NHTSA database for reports of defective sub-frames from one of its cars and that this source 17 would have informed the defendant that the specific model at issue in the case was 18 "experiencing unusually high levels of sub-frame deterioration, steering control arm separation, 19 steering loss, and highway accidents." Cirulli, 2009 WL 5788762, at *4. Here, Plaintiff does not 20 allege Whirlpool's awareness with specificity. Instead, Plaintiff merely alleges that Defendant 21 "engages in extensive pre-release testing that would have shown that the racks in the Subject 22 Ovens are prone to slipping or becoming dislodged." (FAC, ¶ 13.) Plaintiff does not provide 23 any details about or dates of the alleged tests or exactly what the tests would have shown. Pre- 24 release testing is common and Plaintiff must allege more than an undetailed assertion that the 25 testing must have revealed the alleged defect. Otherwise, any consumer could bring a CLRA 26 claim merely by asserting that a manufacturer had knowledge of an alleged defect from its pre- 27 release testing. In addition, the fact that the alleged defect did not appear until eleven months 28 7 6 1 after purchase suggests that the pre-release testing may not have revealed an alleged defect that 2 only appeared after such extended use. (See id. at ¶ 12.) 3 In Avedisian, the plaintiff alleged that the defendant learned about a defect in their 4 product from "pre-release testing data, consumer complaints, dealer complaints, further testing, 5 warranty data, goodwill date, repair date, and parts purchase information." Avedisian, 2013 WL 6 2285237, at *7. However, in Avedisian, the plaintiff presented specific consumer complaints 7 that pre-dated the sale of the alleged defective product whereas here Plaintiff only presents a 8 single specific instance of defect in the form of a YouTube video that was not dated in 9 Plaintiff's complaint. See id. 10 Plaintiff also relies on Falk to show that a record of customer complaints can create the 11 inference that Defendant had knowledge of the defect. However, Falk can be distinguished from United States District Court For the Northern District of California 12 the present matter. In Falk, the plaintiff alleged that there was a record of complaints to 13 defendant between 2003 and 2007 that demonstrated that the defendant was aware of the 14 alleged defect. Falk, 496 F. Supp. 2d at 1096. However, unlike the present matter, the 15 complaints in Falk were dated and they were considered in conjunction with other indications 16 that the defendant had knowledge of the defect. Additionally, the plaintiffs in Falk "present[ed] 17 several pages of quotations containing Internet complaints." Id. In contrast, here Plaintiff only 18 referenced a single undated YouTube video that demonstrated the alleged defect and the bare, 19 undated assertion that "customers around the country have complained to Whirlpool about roll- 20 out racks and regular racks becoming dislodged during use." (FAC, ¶ 4.) 21 In light of Wilson, the Court finds that Plaintiff has failed to state a claim under the 22 CLRA because he did not plead sufficient specific facts to allege that Whirlpool was aware of 23 the alleged defect prior to the sale of the Subject Ovens. The Court grants Whirlpool's motion 24 to dismiss Plaintiff's CLRA claim with leave to amend to plead specific facts indicating 25 Whirlpool's pre-sale knowledge of the defect. 26 27 28 8 6 1 2. Plaintiff Fails to State a Claim Under the Song-Beverly Consumer Warranty Act. 2 3 Whirlpool moves to dismiss Plaintiff's claim under the Song-Beverly Act on the basis 4 that Plaintiff cannot establish a plausible breach of the express warranty, the implied warranty 5 of merchantability, or the implied warranty of fitness for a particular purpose. The main issue is 6 whether the complaint sets forth facts that allow the plausible inference that the Subject Ovens 7 are unfit for their ordinary purpose of cooking food. While Plaintiff asserts a claim for 8 violations of the Song-Beverly Act, the complaint is unclear as to which provisions of the law 9 Plaintiff contends Whirlpool allegedly violated.1 10 The Song-Beverly Consumer Warranty Act is a "remedial measure intended for the 11 protection of consumers and should be given a construction consistent with that purpose." United States District Court For the Northern District of California 12 Brand v. Hyundai Motor America, 226 Cal. App. 4th 1538, 1545 (2014). "The Act provides for 13 both express and implied warranties." Id. "The substantive elements are the same under the 14 Song-Beverly Act and the [federal] Magnuson-Moss Act." Birdsong v. Apple, Inc., 590 F. 3d 15 955, 958 n.2 (9th Cir. 2009). "Under both, the court applies state warranty law." Id. 16 The implied warranty of merchantability requires that "every sale of consumer goods 17 that are sold at retail in this state shall be accompanied by the manufacturer's and the retail 18 seller's implied warranty that the goods are merchantable." Cal. Civ. Code § 1792. An implied 19 warranty of merchantability applies to all retail sales of consumer goods in California "unless 20 specific disclaimer methods are followed." Cholakyan v. Mercedes-Benz USA, LLC, 796 F. 21 Supp. 2d 1220, 1241 (C.D. Cal. 2011). "The Song-Beverly Consumer Warranty Act provides a 22 right of action for a buyer to recover damages and other relief when there has been a breach of 23 the implied warranty of merchantability." Isip v. Mercedes-Benz USA, LLC, 155 Cal. App. 4th 24 19, 25 (2007). The implied warranty of merchantability requires that the goods "(1) pass 25 without objection in the trade under the contract description; (2) are fit for the ordinary purpose 26 27 1 For the purposes of this motion, the Court presumes that Plaintiff intended to state a claim for breach of the implied warranty of merchantability. The Court grants Plaintiff leave 28 to file an amended complaint. Should Plaintiff elect to amend his complaint, the specific provision alleged to be violated must be pled with particularity. 9 6 1 for which those goods are used; (3) are adequately contained, packaged, and labeled; and (4) 2 conform to the promises or affirmation of fact made on the container or label." Birdsong, 590 3 F.3d at 958 n.2 (citing Cal. Civ. Code §1791.1). A "core test of merchantability is fitness for the 4 ordinary purpose for which such goods are used." Brand, 226 Cal. App. 4th at 1546 (quoting 5 Mexia v. Rinker Boat Co., Inc., 174 Cal. App. 4th 1297, 1303 (2009)). "Such fitness is shown if 6 the product is 'in safe condition and substantially free of defects.'" Id. (quoting Mexia, 174 Cal. 7 App. 4th at 1303). "A plaintiff claiming breach of implied warranty of merchantability must 8 show that the product 'did not possess even the most basic degree of fitness for ordinary use.'" 9 Cholakyan, 796 F. Supp. 2d at 1241 (quoting Mocek v. Alfa Leisure, Inc., 114 Cal. App. 4th 10 402, 406 (2003)). "The warranty arises by operation of law" and is accordingly applicable in 11 absence of a formal contract. Brand, 226 Cal. App. 4th at 459. United States District Court For the Northern District of California 12 There are many cases where plaintiffs purchase a car and subsequently claim a breach of 13 the implied warranty of merchantability based on an alleged defect. In these cases, courts have 14 generally held that the implied warranty is "simply a guarantee that [the car] will operate in a 15 safe condition and substantially free of defects. Thus, where a car can provide safe, reliable 16 transportation, it is generally considered merchantable even if certain functions of the car—like 17 a navigation or entertainment system—do not operate as promised." T&M Solar and Air 18 Conditioning, Inc. v. Lennox International Inc., 2015 WL 1289497, at *15 (N.D. Cal. Mar. 20, 19 2015) (citing In re MyFord Touch Consumer Litigation, 46 F. Supp. 3d 936, 980 (N.D. Cal. 20 2014)). 21 Plaintiff's cited cases are distinguishable because they involve defective products that 22 present inevitable safety problems with each use or involve products that are not fit for their 23 ordinary purpose because of substantial defects that consistently impair their entire use over an 24 extended period of time. In Isip, the plaintiff's new Mercedes exhibited a loud engine noise that 25 signaled improper function, constant clanking noises from the breaks, fluid leaks, and emitted 26 excessive white smoke. Isip, 155 Cal. App. 4th at 22. The plaintiff reduced her driving due to 27 safety concerns. Id. The California Court of Appeal held that "a vehicle that smells, lurches, 28 10 6 1 clanks, and emits smoke over an extended period of time is not fit for its intended purpose." Id. 2 at 27. 3 In Avedisian, the plaintiff and her passengers sustained cuts on their arms and hands 4 while using an allegedly defective vehicle. Avedisian, 2013 WL 2285237, at *1. These injuries 5 resulted from contact with allegedly defective chrome plated interior trim pieces. Id. The 6 chrome coating had sharp edges that were allegedly the result of a defect that had caused the 7 coating to "flake, crack, and peel." Id. The court held that even though the vehicle was 8 functional, it was not in safe condition because the plaintiff asserted that there was a danger of 9 lacerated fingers and that she had consistently sustained cuts while driving because of the 10 alleged defect. Id. at *5. 11 Similarly in Stearns, where the plaintiffs found mold growth on their beds, the court United States District Court For the Northern District of California 12 held that "the fact that a person still may sleep on a moldy bed does not bar as a matter of law a 13 claim for breach of the implied warranty of merchantability." Stearns v. Select Comfort Retail 14 Corp., 2009 WL 1635931, at *8 (N.D. Cal. June 5, 2009). Furthermore, in Roberts, the 15 plaintiffs alleged that they bought a drier with a defect that caused it to start a fire that resulted 16 in extensive property damage. Roberts v. Electrolux Home Products, Inc, 2013 WL 7753579, at 17 *1 (C.D. Cal. Mar. 4, 2013). The court held that the plaintiff stated a claim for breach of the 18 implied warranty of merchantability because the alleged design defect caused the lint to 19 accumulate in a manner that created a fire hazard. Id. at *5. Due to this fire hazard, although the 20 drier still functioned, the drier was not fit for its ordinary purpose to safely dry clothes in a 21 residential setting. Id. 22 In the present case, Plaintiff has only alleged a single instance of impaired use. Plaintiff 23 can still use the allegedly defective product for its intended ordinary purpose in a safe manner 24 by using the two other racks in the oven. The ability to operate the product safely distinguishes 25 the present matter from Plaintiff's cited cases. In Isip, Avedesian, Stearns, and Roberts, the 26 alleged defect made it impossible to operate the goods in a safe condition and thus the courts 27 found the goods were not fit for their ordinary purpose. While the defect need not preclude all 28 uses of the product in order to signal a breach of the implied warranty of merchantability, it is 11 6 1 required that the product "not possess even the most basic degree of fitness for ordinary use." 2 See Cholakyan, 796 F. Supp. 2d at 1241. Here, Plaintiff did not allege that the two other oven 3 racks were defective or unsafe. The present case also differs from Plaintiff's cited precedent in 4 that the alleged defect has not occurred over an extended period of time but during only one 5 single instance. See id. at 1243 (quoting Isip, 155 Cal. App. 4th at 27). Although Plaintiff 6 alleges a safety risk, he alleges a risk that does not make the whole product unfit to serve its 7 ordinary purpose of cooking food. Even if the oven's roll-out rack does not operate as promised, 8 the product does not breach the implied warranty of merchantability on that basis alone. See 9 T&M Solar and Air Conditioning, 2015 WL 1289497, at *15. Plaintiff used the Subject Oven 10 for eleven months without incident and failed to provide specific examples of other incidents 11 that support the inference that the oven cannot work in a safe manner. United States District Court For the Northern District of California 12 Plaintiff fails to state a Song-Beverly claim because, according to the allegations in the 13 complaint, the product is fit for its ordinary purpose and the alleged defect does not pose an 14 ongoing safety risk. Based on the relevant authority, a product does not fall below merchantable 15 quality based on a single safety incident when the product is otherwise capable of safe use. 16 Accordingly, the Court grants Whirlpool's motion to dismiss Plaintiff's Song-Beverly Act 17 claim with leave to amend. 18 3. Plaintiff Fails to State a Claim Under the Unfair Competition Law. 19 Whirlpool moves to dismiss on the grounds that Plaintiff failed to adequately allege that 20 it engaged in unlawful, unfair, and fraudulent conduct in violation of the UCL. The UCL 21 "prohibits unfair competition by means of any unlawful, unfair or fraudulent business practice." 22 Cal. Bus. & Prof. Code §§ 17200 et seq. "Each prong of the UCL is a separate and distinct 23 theory of liability." Birdsong, 590 F.3d at 959 (quoting Kearns v. Ford Motor Co., 567 F.3d 24 1120, 1127 (9th Cir. 2009)). 25 a. Plaintiff Fails to State a Claim for Unlawful Business Practices. 26 Plaintiff alleges that Defendant violated the unlawful business practices prong of the 27 UCL because it violated the CLRA and Song-Beverly Act. The UCL "borrows violations of 28 other laws and treats them as unlawful practices that the unfair competition law makes 12 6 1 independently actionable." Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 2 180 (1999). "The California Supreme Court has held that the UCL's 'coverage is sweeping, 3 embracing anything that can properly be called a business practice and that at the same time is 4 forbidden by law.'" Wilson, 668 F.3d at 1140 (quoting Cel-Tech Commc'ns, 20 Cal. 4th at 180). 5 "Violation of almost any federal, state, or local law may serve as the basis for a UCL claim." 6 Saunders v. Superior Ct., 27 Cal. App. 4th 832, 838-39 (1994). While violations of other laws 7 are independently actionable under the unlawful prong of the UCL, under the Court's analysis, 8 Plaintiff fails to plead violations of the CLRA or the Song-Beverly Act. Plaintiff's unlawful 9 business practices claim is based upon violation of these laws. (FAC, ¶ 49.) Accordingly, the 10 Court finds that Plaintiff fails to state a claim for unlawful business practices under the UCL. 11 b. Plaintiff Fails to State a Claim for Unfair Business Practices. United States District Court For the Northern District of California 12 Plaintiff asserts that the allegations that Whirlpool has engaged in an ongoing practice of 13 selling defective products with knowledge of the defect and knowledge that the defect could 14 cause injury, are sufficient to state a claim for unfair business practices. (FAC ¶¶ 34, 38-39, 50, 15 52.) There are two competing tests for defining "unfair" under the UCL, "none of which has yet 16 been adopted as controlling by the California Supreme Court or the Ninth Circuit in the context 17 of consumer fraud." Pirozzi v. Apple, Inc. 966 F. Supp. 2d 909, 921 (N.D. Cal. 2013). 18 "California appellate courts disagree on how to define an 'unfair' act or practice in the context 19 of a UCL consumer action." Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th Cir. 2010). 20 Some courts adhere to a balancing test which requires the plaintiff to prove facts that the harm 21 to the consumer outweighed the utility of the business practice. See id. at 1205. This test 22 examines whether the business practice is "immoral, unethical, oppressive, unscrupulous, or 23 substantially injurious to consumers." Drum v. San Fernando Valley Bar Ass'n, 182 Cal. App. 24 4th 247, 257 (2010). The alternative test "requires a plaintiff to show that a practice violates 25 public policy as declared by 'specific constitutional, statutory, or regulatory provisions.'" Id. 26 (quoting Gregory v. Albertson's, Inc., 104 Cal. App. 4th 845, 854 (2002)). "Plaintiffs must set 27 forth more than conclusory allegations that mirror the elements of the [UCL] claim." Stearns, 28 2009 WL 1635931, at *17. 13 6 1 "The failure to disclose a defect that a manufacturer does not have a duty to disclose, 2 i.e., a defect which it is not aware, does not constitute an unfair or fraudulent practice" under 3 the UCL. Wilson, 668 F.3d at 1145 n.5. Plaintiff alleges that Whirlpool "engaged in an ongoing 4 practice of selling the defective products with knowledge that defects could cause grievous 5 bodily injury" and that Whirlpool failed to disclose the alleged defects and thereby fraudulently 6 deceived reasonable consumers. (See FAC, ¶¶ 50-51.) Plaintiff asserts that these allegations are 7 sufficient to state a claim for unfair business practices. Plaintiff does not explain, however, how 8 Defendant's conduct would constitute unfair business practices in the absence of Defendant's 9 knowledge of the alleged defect at the time of sale. 10 Plaintiff cites two California district court cases to show that the allegations are 11 sufficient to state a claim for unfair business practices. However, these cases can be United States District Court For the Northern District of California 12 distinguished from the present matter because in these cases, there were sufficient allegations 13 that defendants had prior knowledge of their defective products. See Horvath v. LG Electronics 14 Mobilecomm U.S.A., Inc., 2012 WL 2861160, at *11 (S.D. Cal. Feb. 13, 2012) (denying motion 15 to dismiss unfair business practices claim where plaintiff sufficiently alleged that defendant sold 16 defective phones and misled plaintiff after learning of the defect); see also Aguila v. Gen. 17 Motors LLC, 2013 WL 3872502, at *7 (E.D. Cal. July 25, 2013) (denying motion to dismiss 18 unfair business practices claim where plaintiff sufficiently alleged that defendant knew it was 19 installing defective parts). 20 The Court's analysis of Plaintiff's CLRA claim is premised upon the finding that 21 Plaintiff has not adequately alleged facts that indicate Defendant's knowledge of the alleged 22 defect and Defendant's duty to disclose the alleged defect. Accordingly, Plaintiff is not able to 23 state a claim under the unfair business practices prong of the UCL. 24 c. Plaintiff Fails to State a Claim for Fraudulent Business Practices. 25 Plaintiff alleges that Whirlpool's conduct was "fraudulent and likely to deceive 26 reasonable consumers" because it has "omitted and/or failed to disclose. . . material facts 27 regarding the Subject Ovens' tendency to cause the roll-out racks to slip and dislodge" and the 28 safety hazard that is the result of this omission and defect. (FAC, ¶ 51.) Plaintiff further asserts 14 6 1 that Whirlpool had a duty to disclose these facts. (Id.) "To state a claim under the UCL's 2 'fraudulent' prong, plaintiff's must plead that a defendant's allegedly fraudulent business 3 practice is one in which members of the public are likely to be deceived." Mui Ho v. Toyota 4 Motor Corp., 931 F. Supp. 2d 987, 1000 (N.D. Cal. 2013). 5 In Mui Ho, the court found that the plaintiffs stated a fraudulent business practices claim 6 when they sufficiently plead a violation of the CLRA based on a duty to disclose. Id. Similarly 7 to Mui Ho, Plaintiff's fraudulent claim is based on Whirlpool's alleged failure to disclose the 8 alleged defect prior to the sale of the oven. See id. However, here the Court has found that 9 Plaintiff's allegations do not suffice to create a legal duty to disclose because Plaintiff has failed 10 to adequately allege that Whirlpool had knowledge of the alleged defect prior to the sale of the 11 Subject Oven. Whirlpool did not have a duty to disclose a defect of which it was unaware. See United States District Court For the Northern District of California 12 Wilson, 668 F.3d at 1145 n.5; see also In re Sony HDTV, 758 F. Supp. 2d at 1095 ("Sony had 13 no duty to disclose facts of which it was unaware.") 14 The Court grants Whirlpool's motion to dismiss Plaintiff's UCL claims with leave to 15 amend. 16 CONCLUSION 17 For the foregoing reasons, the Court GRANTS Whirlpool's motion to dismiss with leave 18 to amend. Should Plaintiff pursue his claims, Plaintiff shall file and serve his amended pleading 19 by no later tan August 31, 2015. Whirlpool shall answer or otherwise respond within the time 20 required under the Federal Rules of Civil Procedure. 21 IT IS SO ORDERED. 22 Dated: August 5, 2015 23 JEFFREY S. WHITE 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 15 6