Opinion
Case No.: 2:21-cv-00711-AB (PVCx)
2021-11-18
Hayk BEZIRGANYAN, as an individual, on behalf of himself, all others similarly situated, and the general public, Plaintiff, v. BMW OF NORTH AMERICA, LLC, a Delaware Limited Liability Company; and Does 1 through 100, inclusive, Defendants.
Armen Margarian, Hovanes Margarian, Shushanik Margarian, The Margarian Law Firm, Glendale, CA, Neil C. Evans, Law Offices of Neil Evans, Sherman Oaks, CA, for Plaintiff. Eric Y. Kizirian, Zourik Zarifian, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA, for Defendant BMW of North America, LLC.
Armen Margarian, Hovanes Margarian, Shushanik Margarian, The Margarian Law Firm, Glendale, CA, Neil C. Evans, Law Offices of Neil Evans, Sherman Oaks, CA, for Plaintiff.
Eric Y. Kizirian, Zourik Zarifian, Lewis Brisbois Bisgaard and Smith LLP, Los Angeles, CA, for Defendant BMW of North America, LLC.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINT
ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE
On May 12, 2021, Defendant BMW of North America, LLC ("Defendant" and "BMW") filed a Motion to Dismiss Plaintiff's First Amended Complaint ("Motion"). Dkt. No. 22. Plaintiff Hayk Bezirganyan ("Plaintiff") opposed the Motion ("Opp'n"), Dkt. No. 34, and Defendant filed a reply ("Reply"), Dkt. No. 36. For the following reasons, the Court GRANTS Defendant's Motion.
I. BACKGROUND
a. Factual Background
In March or May of 2020, Plaintiff leased a 2020 BMW M4 CS Coupe. First Amended Class Action Complaint ("FAC"), Dkt. No. 17, ¶¶ 11, 42, 100. Plaintiff chose to purchase optional M Carbon Ceramic Brakes ("CCBs") for an additional cost in the range of $8,500 to $9,250. Id. , ¶¶ 11, 32, 43. After acquiring the vehicle from a dealer, Plaintiff noticed that his CCBs were intermittently making squealing noises. Id. , ¶¶ 44–46. Both the dealer and Defendant ultimately told Plaintiff that the squealing noises were normal and that there was nothing wrong with the CCBs. Id. , ¶ 48, Ex. A. Plaintiff alleges that his CCBs contain "one or more design and/or manufacturing defects ... that cause a loud squealing noise when the brakes are applied." Id. , ¶ 28.
Since May 2018, Defendant's website has included a description of its M Carbon Ceramic Brakes, which includes the following disclaimer: "Dependent on conditions and usage, features specific to the materials used can lead to operational noises particularly in wet conditions just before the vehicle comes to a halt." Motion at 3–4. Additionally, Plaintiff notes that Defendant disclosed the likelihood of brake squeal in Plaintiff's owners’ manual, FAC, ¶ 8, and, by 2018, had instructed BMW dealers to tell customers that squealing and honking are "known characteristics" of CCBs, Id. , ¶ 52.
b. Procedural Background
On January 26, 2021, Plaintiff filed a Class Action Complaint against Defendant, including seven claims (detailed below). Dkt. No. 1. On February 17, 2021, the parties stipulated to an extension of time for Defendant to file a response to Plaintiff's Class Action Complaint, establishing a new deadline of March 29, 2021. Dkt. No. 12 at 2. Plaintiff's counsel then informed Defendant he intended to file a First Amended Class Action Complaint ("FAC"), Dkt. No. 16 at 2, and Plaintiff filed the FAC on April 12, 2021. Dkt. Nos. 17, 18.
The FAC includes nine claims (among which are the seven claims of the Class Action Complaint): (1) fraud and deceit, (2) breach of express warranty, (3) breach of implied warranty under the Uniform Commercial Code, (4) breach of warranty under the Song-Beverly Consumer Warranty Act, (5) breach of warranty under the Magnuson-Moss Warranty Act, (6) violation of the California Consumer Legal Remedies Act, (7) violation of California's Unfair Competition Act, (8) violation of California's False Advertising Law, and (9) nuisance.
Defendant filed the instant Motion on May 12, 2021. Dkt. No. 22. On June 4, 2021, after Plaintiff failed to oppose the Motion, Defendant filed a notice of non-opposition. Dkt. No. 24. On June 17, 2021, the Court responded by granting Defendant's Motion to Dismiss with prejudice. Dkt. No. 25. On July 16, 2021, Plaintiff moved to vacate the order granting Defendant's Motion to Dismiss, on the ground that Plaintiff's failure to oppose the Motion was due to an inadvertent calendaring error. Dkt. No. 26. After Defendant opposed the Motion to Vacate and noted other failures to prosecute and comply by Plaintiff's counsel, Plaintiff's counsel replied that all such problems were due to the irresponsibility of a senior counsel who no longer worked for Plaintiff's counsel. See Dkt. No. 33 at 3. The Court noted that the delays in this case were not unduly prejudicial to Defendant but warned Plaintiff's counsel that further failures would result in a dismissal with prejudice. Id. The Court then vacated its prior dismissal and reinstated the action. Id.
II. JUDICIAL NOTICE
In support of the Motion, Defendant filed a Request for Judicial Notice, Dkt. No. 22-2, in which Defendant requested notice of the warranty booklet for Plaintiff's 2020 BMW M4 CS, under Federal Rule of Evidence 201. The Court granted the Request and took judicial notice of the warranty booklet when it originally granted Defendant's Motion, following Plaintiff's failure to oppose. Dkt. No. 25. Although the dismissal was ultimately vacated, Dkt. No. 33, the Court's decision to take judicial notice of the warranty booklet still stands for the purpose of ruling on the pending Motion.
III. LEGAL STANDARD
a. Rule 12(b)(6)
Federal Rule of Civil Procedure 8 requires a plaintiff to present a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), a defendant may move to dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
To defeat a Rule 12(b)(6) motion to dismiss, the complaint must provide enough details to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint must also be "plausible on its face," allowing the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Labels, conclusions, and "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Moreover, "factual allegations must be enough to raise a right to relief above the speculative level." Id.
When ruling on a Rule 12(b)(6) motion, "a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). But a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (2009) (internal quotation marks omitted).
IV. DISCUSSION
In his Opposition, Plaintiff agreed to omit his fifth claim, which accuses Defendant of breach of warranty under the Magnuson-Moss Act claim. Therefore, the Court GRANTS dismissal of Plaintiff's fifth claim, without leave to amend . The Court will discuss the remaining eight claims in the order that they were pled, except where common issues permit the Court to group claims together.
a. Fraud, Deceit, and Misrepresentation (Claims 1, 6)
Plaintiff's first claim accuses Defendant of fraud and deceit, and his sixth claim accuses Defendant of violating California's Consumer Legal Remedies Act ("CLRA"). FAC, ¶ 109, 193. In California, "the elements of fraud that will give rise to a tort action for deceit are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity ...; (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage." Engalla v. Permanente Medical Group, Inc. , 15 Cal. 4th 951, 974, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997) (quoting Lazar v. Superior Court , 12 Cal. 4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981 (1996) ). Moreover, the CLRA prohibits a variety of deceptive acts, in connection with transactions intended to result in sales or leases of goods. Cal. Civ. Code § 1770(a). Most importantly for the purposes of this dispute, the CLRA prohibits sellers from misrepresenting the characteristics or benefits of the goods they sell or intend to sell. Cal. Civ. Code § 1770(a)(5). Therefore, Claims 1 and 6 both depend for their success on Defendant having misrepresented the CCBs on their vehicles.
However, Defendant did not misrepresent the CCBs on their vehicles. On the contrary, in the owners’ manual for Plaintiff's car, Defendant indicated both that braking could produce "louder function noises," and that these noises were particularly likely to occur under certain circumstances (e.g. "just before the vehicle comes to a stop"). FAC, ¶ 8. Additionally, Defendant instructed BMW dealers to tell customers that squealing and honking were "known characteristics" of CCBs, Id. , ¶ 52, and included a disclaimer about the likelihood of "operational noises" in the description for CCBs on its website. Motion at 3–4. Moreover, Defendant made these accurate representations and disclosures about the possibility of brake squeal by 2018, long before the commencement of Plaintiff's lease in 2020. FAC, ¶¶ 8, 52.
Rather than misrepresent the likelihood of brake squeal, Defendant disclosed it to consumers in a variety of ways. Therefore, Defendant did not violate the requirements of the CLRA. Additionally, it is clear Defendant has not satisfied the first element for fraud and deceit, i.e. misrepresentation. For these reasons, Plaintiff's first and sixth claims are DISMISSED . Since no amendment could cure these claims’ deficiencies, they are dismissed without leave to amend .
b. Breach of Express Warranty (Claim 2)
Plaintiff's second claim accuses Defendant of breach of express warranty. As noted above, the Court took judicial notice of the warranty booklet for Plaintiff's vehicle in a prior order. Dkt. No. 25. The warranty says the following: "[Defendant] warrants [Plaintiff's vehicle] against defects in materials or workmanship ..." Dkt. No. 22-3 at 2. Per California law, express warranties of this kind, i.e. those that warrant products against defects in materials or workmanship, "exclude defects in design." See Troup v. Toyota Motor Corp , 545 Fed. Appx. 668 (9th Cir. 2013) (citing Daugherty v. Am. Honda Motor Co., Inc. , 144 Cal. App. 4th 824, 830, 51 Cal.Rptr.3d 118 (2006) ). Since Plaintiff only alleges design defects, he is unable to plausibly raise a right to relief for breach of express warranty.
Plaintiff responds that the FAC alleges both design defects and manufacturing defects and that defects of the latter kind are covered by Defendant's express warranty. Opp'n at 13. However, using the term "manufacturing defect," see, e.g. , FAC, ¶ 11, does not necessarily mean a plaintiff has plausibly pled a manufacturing defect.
"California recognizes two distinct categories of product defects: manufacturing defects and design defects ... A manufacturing defect exists when an item is produced in substandard condition ... Such a defect is often demonstrated by showing the product performed differently from other ostensibly identical units of the same product line ... A design defect, in contrast, exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective." McCabe v. American Honda Motor Co. , 100 Cal. App. 4th 1111, 123 Cal.Rptr.2d 303 (2002) (internal citations omitted). According to California's defect definitions, Plaintiff clearly alleges a design defect, rather than a manufacturing defect. Plaintiff alleges, throughout the FAC, that the CCBs on Plaintiff's vehicle were just like the CCBs on other vehicles manufactured and distributed by Defendant. Rather than performing differently than "identical units of the same product line," Plaintiff's CCBs are alleged to produce the same sort of squeal that other BMW vehicles produce. See id. Moreover, since Plaintiff's FAC is a class action complaint, Plaintiff clearly intends to allege a sort of defect that exists in many of Defendant's vehicles, rather than one that is unique to the vehicle Plaintiff leased. This strongly suggests Plaintiff has failed to plead a manufacturing defect.
Plaintiff responds by pointing to an unpublished opinion of the Ninth Circuit, concerning a case with very similar facts, which says the following: "The fact that the [complaint] alleges that all BMW CCBs exhibit the defect does not preclude the defect from being a manufacturing defect—under California law a manufacturing defect encompasses instances where products differ, even uniformly, from a manufacturer's intended result or design." Barakezyan v. BMW of North America, LLC , 715 Fed. Appx. 762 (9th Cir. 2018) (citing Barker v. Lull Eng'g Co. , 20 Cal. 3d 413, 429, 143 Cal.Rptr. 225, 573 P.2d 443 (1978) ). However, the Ninth Circuit went on to say that the complaint in that case plausibly pled a manufacturing defect by "alleging that BMW's CCBs have tension relief cracks, deviating from BMW's design." Id. The operative complaint in this case, by contrast, does not allege tension relief cracks; instead, it only alleges brake squeal and includes no evidence that such squeals depart from Defendant's intended design.
For this reason, Plaintiff's second claim is DISMISSED . However, since Plaintiff may be able to amend his class action complaint, so that it alleges Defendant's CCBs uniformly differ from their intended design, the Court grants Plaintiff leave to amend this claim.
c. Breach of the Implied Warranty of Merchantability (Claims 3, 4)
Plaintiff's third and fourth claims accuse Defendant of breach of implied warranty under the Uniform Commercial Code ("UCC") and breach of warranty under the Song-Beverly Consumer Warranty Act ("Song-Beverly"). These claims can be grouped together, since they both raise (i) the threshold question of privity between Defendant and the BMW dealer from which Plaintiff leased his vehicle, and (ii) the question of the subject vehicle's merchantability.
Under the UCC, there is an implied warranty of merchantability in any contract for sale by a seller who deals in goods of the kind being sold. UCC, § 2-314(1). Central to the UCC's description of merchantability is that merchantable goods are "fit for the ordinary purposes for which such goods are used." Id. , § 2-314(2)(c). Similarly, under Song-Beverly, consumer goods sold in California carry an implied warranty of merchantability, meaning, again, that they must be "fit for the ordinary purposes for which such goods are used." Cal. Civ. Code § 1791.1(a)(2). As one court has put it, this warranty does not "impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality." American Suzuki Motor Corp. v. Superior Court , 37 Cal. App. 4th 1291, 1296, 44 Cal.Rptr.2d 526 (1995) (quoting Skelton v. General Motors Corp., 500 F. Supp. 1181, 1191 (N.D. Ill. 1980), revd. on other grounds, 660 F.2d 311 (7th Cir. 1981) ). Therefore, if Defendant's CCBs are fit for their ordinary purpose and provide for a minimum level of quality, then there is no breach of implied warranty in this case, whether under the UCC or the Song-Beverly.
In the FAC, Plaintiff explains that "[b]rake systems in motor vehicles serve two main purposes: (1) to help [control] the speed of the vehicle and to stop it when ... you need to and (2) to hold the vehicle in place without the presence of a driver after [the vehicle] is brought to a complete stop." FAC, ¶ 4. At no point does Plaintiff dispute that these purposes are met by Plaintiff's vehicle. This, on its own, would seem to be enough to dispatch Plaintiff's implied warranty claims.
However, Plaintiff's FAC includes the allegation that the CCBs emit "an extremely loud squealing noise," FAC, ¶ 3, and argues that the intermittent nature of this sound creates such a "potential for surprise," that either Plaintiff, his fellow drivers, pedestrians, or nearby animals might be startled by the sound, Opp'n at 3–4. Plaintiffs concern here seems to be that the sound might shock hearers to such a degree that they immediately get into car accidents or suffer injuries in other ways; as Plaintiff puts it, "The list [of possibilities] is endless." Opp'n at 4. In Barakezyan , the Ninth Circuit was persuaded by this argument. See 715 Fed. Appx. at 763. It said the following: "[T]aking the allegations as true, the CCBs, when engaged, emit an extremely loud ... noise, which has, on numerous occasions, distracted Barakezyan and other BMW drivers, as well as nearby pedestrians. That, along with allegations that the noise is intermittent ... meaning that the noise has the potential to surprise, at least plausibly pleads a safety hazard ..." Id. Two features of Plaintiff's complaint distinguish it from Barakezyan . First, Plaintiff's FAC consistently alleges that the brake squeal phenomenon occurs at slow speeds and especially when the subject vehicles are coming to a stop, see, e.g. , FAC, ¶¶ 40, 46, 52(b), 65, 239(c). Moreover, the FAC never alleges that the CCBs squeal in high-speed situations or that they make noise independently of a vehicle's braking action. Given the low speeds at which squeal allegedly occurs, Plaintiff does not plausibly plead that squeal of this sort causes a safety hazard.
Second, Plaintiff offers nothing to help the Court understand how loud the squeal of his brakes in fact is, other than to say that it is "extremely loud." FAC, ¶ 3. This vague assertion prevents the Court from evaluating Plaintiff's claim for plausibility. Could a sudden sound from a vehicle's brakes be loud enough to shock a vehicle's driver, to the point that the driver loses control of the vehicle? A review of several online videos documenting BMW CCB squeal suggests that the answer is no. Therefore, Plaintiff fails to plausibly argue that his vehicle is unmerchantable. Moreover, since Plaintiff has not adequately pled that his vehicle is unmerchantable, the Court need not address the prior question of privity. With respect to his claim for breach of the implied warranty of merchantability, Plaintiff fails to allege facts that raise a right to relief above "the speculative level." See Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
For the above reasons, Plaintiff's third and fourth claims are DISMISSED . However, since Plaintiff may be able to plausibly plead that the squeal of his brakes is loud enough to constitute a substantial safety hazard, his third and fourth claims are dismissed with leave to amend.
d. Unfair Competition and False Advertising (Claims 7, 8)
Plaintiff's seventh claim accuses Defendant of violating California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq. , and his eighth claim accuses Defendant of violating California's False Advertisement Law ("FAL"), Cal. Bus. & Prof. Code § 17500, et seq. These claims are closely related, in that any violation of the FAL implies a violation of the UCL. Williams v. Gerber Products Co. , 552 F.3d 934, 938 (9th Cir. 2008) (quoting Kasky v. Nike, Inc. , 27 Cal. 4th 939, 950, 119 Cal.Rptr.2d 296, 45 P.3d 243 (2002) ). Moreover, Plaintiff's seventh claim involves an allegation of false advertising, which permits the Court to discuss that part of the seventh claim together with Plaintiff's eight claim.
California's Unfair Competition Law prohibits "unfair competition." Moreover, California courts have said that "unfair competition" is to be construed very broadly. See, e.g., Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. , 20 Cal. 4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (1999). After all, the text of the UCL is patently wide in scope: included within its definition of "unfair competition" are "any unlawful, unfair or fraudulent business act or practice," as well as "unfair, deceptive, untrue or misleading advertising," and, "any act prohibited by Chapter 1 ... of Part 3 of Division 7 of the Business and Professions Code." Cal. Bus. & Prof. Code § 17200.
Plaintiff's Complaint, though regrettably far from clear, appears to allege a violation of the UCL on two grounds: first, that Defendant "offends an established public policy," by telling consumers brake squeal is normal and thereby preventing them from identifying genuine problems with their brakes, FAC, ¶ 217, and second, that Defendant induced Plaintiff to buy CCBs by means of "false and misleading advertising," Id.
Plaintiff expands on the first allegation in his Opposition, arguing that "[u]nusual brake noise serves as a warning that one of the most essential systems in a vehicle is malfunctioning," and therefore that Defendant's "recommendation to ignore the noise has the potential to result in dangerous and unsafe driving." See Opp'n at 3, 8. This argument fails to meet the requirements of Rule 8. Again, Rule 8 requires that a complaint be "plausible on its face," and allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Moreover, "factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Here, Plaintiff claims that Defendant's recommendation to ignore brake squeal will inevitably cause harm to consumers and that it therefore offends established public policy. See FAC, ¶ 217. However, Plaintiff's FAC does not plausibly allege that drivers who ignore brake squeal suffer such harm; it therefore fails to suggest that Defendant's recommendations actually offend an established public policy by putting Plaintiff or any other BMW drivers at risk of harm.
Plaintiff's second allegation under the UCL is that Defendant induced Plaintiff to buy CCBs by means of "false and misleading advertising," Id. That Plaintiff alleges a violation of the UCL on this ground allows the Court to address this allegation in conjunction with Plaintiff's eighth claim, which alleges violation of California's False Advertising Law.
The FAL states, in part, that it is unlawful for corporations to publicly disseminate statements about their products, which they know (or should reasonably know) are untrue or misleading, while possessing intent to sell those same products. See Cal. Bus. & Prof. Code § 17500. Plaintiff alleges that Defendant violated the FAL by advertising that their vehicles were, for example, "truly exceptional," "dialed to perfection," and "equipped to deliver flawlessly," and also by claiming that their CCBs would deliver, "the ultimate brake performance." See FAC, ¶¶ 125, 142, 231.
However, such statements are merely non-actionable sales puffery. See Motion at 11, 15, 16; Reply at 5. According to California law, a party cannot be held liable for falsity on the basis of "mere puffing," i.e. merely for making statements of opinion. See Hauter v. Zogarts , 14 Cal. 3d 104, 111, 120 Cal.Rptr. 681, 534 P.2d 377 (1975) Statements of this kind cannot ground liability for falsity because no reasonable consumer would be inclined to think of them as statements of fact, rather than as statements of opinion. And since statements of opinion are presumed not to mislead reasonable consumers, statements of sales puffery do not count as false advertising. See Demetriades v. Yelp, Inc. , 228 Cal. App. 4th 294, 311, 175 Cal.Rptr.3d 131 (2014) ("A statement is considered puffery if the claim is extremely unlikely to induce consume reliance") (quoting Newcal Industries, Inc. v. Ikon Office Solution , 513 F.3d 1038, 1053 (9th Cir. 2008) ).
Moreover, "a statement that is quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a product,’ may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery." Id. By this standard, Defendant's advertisements with respect to their vehicle and their CCBs clearly count as non-actionable puffery. If Defendants had advertised that their vehicles were quiet or silent, consumers could have reasonably relied on such statements in forming expectations about the potential for noisy brakes. But words like "exceptional," "perfect," "flawless," and "ultimate," are far too general to reasonably "induce customer reliance." See id. Therefore, both Plaintiff's FAL claim (Claim 8), and Plaintiff's second allegation with respect to the UCL claim (part of Claim 7) fail to state claims on which relief can be granted.
For the above reasons, Plaintiff's seventh and eighth claims are DISMISSED . Since no amendment could cure the claims that allege false advertising, the FAL claim is dismissed without leave to amend (Claim 8), and Plaintiff does not have leave to amend the UCL claim to the extent that the claim depends on an allegation of false or misleading advertising. However, to the extent that the UCL claim depends on the allegation that Defendant's recommendation to ignore brake noise creates a safety risk for consumers, the Court gives Plaintiff leave to amend his claim (Claim 7), so long as it is formulated to meet the requirements of Fed. R. Civ. P. 8.
e. Public Nuisance (Claim 9)
Plaintiff's ninth claim accuses Defendant of nuisance and more specifically of public nuisance. FAC, ¶¶ 238–239. According to California Civil Code § 3493, "A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise." As one California court has put it, this means that "individuals may assert claims for public nuisance only where they have suffered a special injury that is different in kind, not just degree, from the general public." Birke v. Oakwood Worldwide , 169 Cal. App. 4th 1540, 1544, 87 Cal.Rptr.3d 602 (2009).
This immediately raises questions about Plaintiff's ability to certify a class for this claim, given that the "different in kind" requirement will pose problems for the typicality requirement of class actions. See Motion at 23; Fed. R. Civ. P. 23(a)(3).
More crucially, though, § 3493 implies that Plaintiff cannot state a claim for public nuisance, given that the sorts of harms he claims to have suffered as a result of his vehicle's brake squeal are not of a different kind than the harms he claims are suffered by the general public. In his complaint, Plaintiff alleges that the brake squeal annoys, disturbs, startles, and threatens the health of the general public, and he also claims to suffer from the same kinds of harm himself. FAC, ¶ 239. Additionally, Plaintiff claims to have suffered a unique harm as the driver of the car, in that law enforcement agents "associate brake squeals with high-speed driving and racing." Id. , ¶ 239(f). However, the Court cannot take this claim of harm seriously, given that Plaintiff, in the same paragraph, describes the brake squeal phenomenon as something that characteristically occurs "when driving at slow speeds." Id. , ¶ 239(c).
For these reasons, Plaintiff's ninth claim is DISMISSED . Although Plaintiff could allege facts that establish he suffers a unique kind of harm as a result of brake squeal (and thereby state a claim for public nuisance), he cannot make such an amendment so long as his nuisance claim must meet a class action's typicality requirement. Therefore, so long as Plaintiff's action remains a class action, his ninth claim is dismissed without leave to amend .
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's Motion to Dismiss. The Court GRANTS dismissal of the following five claims, without leave to amend :
1. The first claim, for fraud and deceit.
2. The fifth claim, for violation of the Magnuson-Moss Act.
3. The sixth claim, for violation of the CLRA.
4. The eight claim, for violation of the FAL.
5. The ninth claim, for public nuisance.
The Court GRANTS dismissal of the remaining four claims, with leave to amend :
1. The second claim, for breach of express warranty.
2. The third claim, for breach of implied warranty.
3. The fourth claim, for breach of warranty under the Song-Beverly Act.
4. The seventh claim, for violation of California's UCL.
Plaintiff is ORDERED to file any Second Amended Class Action Complaint within 14 days of the issuance of this order; otherwise, the dismissed claims herein will be dismissed with prejudice.
Finally, in amending his Complaint, Plaintiff is strongly advised to provide citations for any statutes, cases, or studies he relies on.