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Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 1 of 36 Page ID #:240

1 MORGAN, LEWIS & BOCKIUS LLP


David L. Schrader, Bar No. 149638
2 david.schrader@morganlewis.com
Esther K. Ro, Bar No. 252203
3 esther.ro@morganlewis.com
Jahmy S. Graham, Bar No. 300880
4 jahmy.graham@morganlewis.com
300 South Grand Avenue
5 Twenty-Second Floor
Los Angeles, CA 90071-3132
6 Tel: +1.213.612.2500
Fax: +1.213.612.2501
7
Attorneys for Defendant
8 Toyota Motor Sales, U.S.A., Inc.
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
13 PAUL STOCKINGER, ELIZABETH Case No. 2:17-cv-00035-VAP (KSx)
STOCKINGER, GAILYN KENNEDY,
14 BASUDEB DEY, BRENDA FLINN, MEMORANDUM OF POINTS
and ELIEZER CASPER on behalf of AND AUTHORITIES IN SUPPORT
15 themselves and all others similarly OF DEFENDANTS TOYOTA
situated, MOTOR SALES, U.S.A., INC.S
16 MOTION TO DISMISS
Plaintiffs, PLAINTIFFS COMPLAINT
17
vs. [Notice of Motion and Motion;
18 Request for Judicial Notice, and
TOYOTA MOTOR SALES, U.S.A., Declarations of David L. Schrader and
19 INC., a California corporation, Barry M. Hare filed concurrently
herewith]
20 Defendant.
[[Proposed] Order lodged concurrently
21 herewith]
22 Date: April 3, 2017
23 Time: 2:00 p.m.
Judge: Hon. Virginia A. Phillips
24 Ctrm.: 8A, 8th Floor
25
Complaint filed: January 3, 2017
26
27
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES MEMORANDUM IN SUPPORT OF
DB1/ 90970339.8 TOYOTAS MOTION TO DISMISS
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 2 of 36 Page ID #:241

1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ................................................................................ 1
4 II. RELEVANT BACKGROUND ............................................................ 3
5 A. Summary Of Plaintiffs Allegations ..................................................... 3
6 B. HVAC Odor May Be Caused By Multiple Factors Unrelated To
Any Alleged Design Defect .................................................................. 4
7
C. The Owners Manuals Disclose The Possibility Of HVAC Odor ........ 5
8
III. LEGAL STANDARDS ........................................................................ 5
9
IV. ARGUMENT ........................................................................................ 6
10
A. All Claims Fail Because Plaintiffs Do Not Plausibly Allege Any
11 Design Defect That Caused Odors Or Mold in Their Vehicles ............ 6
12 1. Plaintiffs fail to plead facts that their vehicles experienced
any mold-related safety hazard and they cannot rely upon
13 conclusory information and belief allegations to do so .......... 7
14 2. Plaintiffs fail to plead facts connecting the alleged design
defect to the odors they have purportedly experienced .............. 8
15
B. Plaintiffs Fraud-Based Claims Fail For Multiple Reasons................ 10
16
1. Plaintiffs have not alleged a misrepresentation by Toyota....... 10
17
2. Plaintiffs have not identified a material omission by
18 Toyota ....................................................................................... 11
19 3. Plaintiffs have not alleged a duty to disclose by Toyota .......... 12
20 a. Florida law does not have an exclusive
knowledge exception .................................................... 13
21
b. Virginia law recognizes a limited exclusive
22 knowledge exception .................................................... 14
23 c. Plaintiffs fail to satisfy the elements of the
exclusive knowledge exception under California,
24 Kansas, and Washington Law ........................................ 14
25 d. Plaintiff Dey cannot satisfy any unique exceptions
triggering a duty to disclose under California law ......... 17
26
C. Plaintiffs Fail To State Breach Of Warranty Claims .......................... 18
27
1. Plaintiffs breach of express warranty claims fail for
28 multiple reasons ........................................................................ 18
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
MEMORANDUM IN SUPPORT OF
LOS ANGELES
i TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
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1 TABLE OF CONTENTS
(continued)
2 Page
3
2. Plaintiffs breach of implied warranty of merchantability
4 claims fail for multiple reasons ................................................ 19
5 3. Plaintiffs MMWA and California statutory warranty
claims fail as a matter of law .................................................... 20
6
D. Plaintiffs Also Fail To State A Claim Under The Unlawful
7 And Unfair Prongs of State Consumer Protection Laws ................ 20
8 E. Plaintiffs Equitable Claims Fail Because They Have Not
Established That There is No Adequate Remedy at Law
9 Available ............................................................................................. 21
10 F. Plaintiffs Do Not Have Standing To Pursue Claims Regarding
Vehicles They Did Not Purchase ........................................................ 23
11
V. CONCLUSION ................................................................................... 25
12
13
14
15
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES ii TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
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1
TABLE OF AUTHORITIES
2
Page(s)
3
4 CASES

5 Adelson v. U.S. Legal Support, Inc.,


715 F. Supp. 2d 1265 (S.D. Fla. 2010)................................................................ 21
6
7 Am. Honda Motor Co. v. Sup. Ct.,
199 Cal. App. 4th 1367 (2011) ............................................................................ 15
8
Am. Suzuki Motor Corp. v. Sup. Ct.,
9 37 Cal. App. 4th 1291 (1995) .............................................................................. 19
10
Arista Records, LLC v. Doe 3,
11 604 F.3d 110 (2d Cir. 2010) .................................................................................. 8
12 Ashcroft v. Iqbal,
13 556 U.S. 662 (2009) .................................................................................. 5, 6, 7, 9
14 Astiana v. Hain Celestial Grp., Inc.,
15 783 F.3d 753 (9th Cir. 2015) ............................................................................... 23

16 Barakezyan v. BMW of N.A., LLC,


No. CV1600173SJOGJSX, 2016 WL 2840803 (C.D. Cal. Apr. 7,
17 2016) .................................................................................................................... 12
18
BCJJ, LLC v. LeFevre,
19 No. 8:09-CV-551-T-17EAJ, 2011 WL 989230 (M.D. Fla. Mar. 21,
20 2011) .................................................................................................................... 14

21 Bell Atl. Corp. v. Twombly,


550 U.S. 544 (2007) .................................................................................... 5, 9, 10
22
23 Birdsong v. Apple, Inc.,
590 F.3d 955 (9th Cir. 2009) ............................................................................... 20
24
Blantz v. Cal. Dept of Corr. & Rehab.,
25
727 F.3d 917 (9th Cir. Cal. 2013) ......................................................................... 7
26
Bros.v. HewlettPackard Co.,
27 No. C-06-02254, 2007 WL 485979 (N.D. Cal. Feb. 12, 2007) .......................... 18
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
MEMORANDUM IN SUPPORT OF
LOS ANGELES
iii TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 5 of 36 Page ID #:244

1 Brown v. Hain Celestial Grp., Inc.,


2 913 F. Supp. 2d 881 (N.D. Cal. 2012)................................................................. 24

3 Brown v. Transurban USA. Inc.,


144 F. Supp. 3d 809 (E.D. Va. 2015) .................................................................. 23
4
5 Carrea v. Dreyers Grand Ice Cream, Inc.,
No. C 10-01044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) ................... 24
6
Cel-Tech Comm., Inc., v. Los Angeles Cell. Tel. Co.,
7
20 Cal. 4th 163 (1999) ......................................................................................... 21
8
Chandler v. Wash. Toll Bridge Authority,
9 17 Wash. 2d 591 (1943) ...................................................................................... 23
10
Coe v. Philips Oral Healthcare Inc.,
11 No. C13-518-MJP, 2014 WL 722501(W.D. Wash. Feb. 24, 2014) ................... 19
12 Daugherty v. American Honda Motor Co., Inc.,
13 51 Cal. Rptr. 3d 118 (2006) ................................................................................. 12
14 Decoteau v. FCA US LLC,
No. 215CV00020MCEEFB, 2015 WL 6951296 (E.D. Cal. Nov. 10,
15
2015) ...................................................................................................................... 9
16
Diamond S Dev. Corp. v. Mercantile Bank,
17 989 So. 2d 696 (Fla. 5th DCA 2008) .................................................................. 23
18
Durkee v. Ford Motor Co.,
19 No. C 14-0617 PJH, 2014 WL 4352184 (N.D. Cal. Sept. 2, 2014) .................... 22
20 Enomoto v. Space Adventures, Ltd.,
21 624 F. Supp. 2d 443 (E.D. Va. 2009) .................................................................. 11
22 Favors v. Matzke,
23 53 Wash. App. 789 (1989) ............................................................................ 13, 14

24 Fisher v. Honda N. Am.,


No. LA CV13-09285 JAK, 2014 WL 2808188 (C.D. Cal. June 12,
25 2014) .................................................................................................................... 15
26
Franklin v. Gwinnett Cnty. Pub. Sch.,
27 503 U.S. 60 (1992) .............................................................................................. 22
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 6 of 36 Page ID #:245

1 Gertz v. Toyota Motor Corp.,


2 No. CV 10-1089, 2011 WL 3681647 (C.D. Cal. Aug. 22, 2011) ....................... 18

3 Granfield v. NVIDIA Corp.,


No. C 11-05403 JW, 2012 WL 2847575 (N.D. Cal. July 11, 2012)................... 24
4
5 Gray v. Toyota Motor Sales, U.S.A.,
No. CV 08-1690 PSG JCX, 2012 WL 313703 (C.D. Cal. Jan. 23,
6 2012) .................................................................................................................... 18
7
Grodzitsky v. Am. Honda Motor Co.,
8 No. 2:12-CV-1142-SVW-PLA, 2013 WL 690822 (C.D. Cal. Feb.
19, 2013) .............................................................................................................. 16
9
10 Guerrero v. Target Corp.,
889 F. Supp. 2d 1348 (S.D. Fla. 2012)................................................................ 11
11
Hangman Ridge Training Stables, Inc.,
12
105 Wash. 2d 778 (1986) .................................................................................... 11
13
Hass v. Citizens of Humanity, LLC,
14 No. 14-CV-1404 JLS (WVG), 2016 WL 7097870 (S.D. Cal. Dec.
15 6, 2016) ................................................................................................................ 24
16 Herremans v. BMW of N. Am., LLC,
No. CV 14-02363 MMM PJWX, 2014 WL 5017843 (C.D. Cal.
17
Oct. 3, 2014) ........................................................................................................ 16
18
Herron v. Best Buy Co. Inc.,
19 924 F. Supp. 2d 1161 (E.D. Cal. 2013) ......................................................... 14, 16
20
In re 5-hour ENERGY Mktg. & Sales Practices Litig.,
21 No. 13-2438 PSG, 2017 WL 385042 (C.D. Cal. Jan. 24, 2017) ......................... 23
22 In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales
23 Practices, & Prod. Liab. Litig.,
754 F. Supp. 2d 1145 (C.D. Cal. 2010) ................................................... 18, 19, 23
24
25 Intl Petroleum Serv., Inc. v. S & N Well Serv., Inc.,
230 Kan. 452 (1982) ............................................................................................ 19
26
Johns v. Bayer Corp.,
27 No. 09CV1935DMSJMA, 2010 WL 476688 (S.D. Cal. Feb. 9,
28 2010) .................................................................................................................... 24
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES v TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 7 of 36 Page ID #:246

1 Kearns v. Ford Motor Co.,


2 567 F.3d 1120 (9th Cir. 2009) ......................................................................... 6, 11

3 Klem v. Wash. Mut. Bank,


176 Wash. 2d 771 (2013) .................................................................................... 21
4
5 Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) ............................................................................... 6
6
Korea Supply Co. v. Lockheed Martin Corp.,
7
29 Cal. 4th 1134 (2003) ....................................................................................... 22
8
Licul v. Volkswagen Grp. of Am., Inc.,
9 No. 13-61686-CIV, 2013 WL 6328734 (S.D. Fla. Dec. 5, 2013) ....................... 22
10
LiMandri v. Judkins,
11 52 Cal. App. 4th 326 (1997) ................................................................................ 17
12 Lopez v. Washington Mut. Bank, F.A.,
13 302 F.3d 900 (9th Cir. 2002) ............................................................................... 21
14 Lowe v. Mercedes Benz of N. Am.,
103 F.3d 118,1996 WL 694433 (4th Cir. Dec. 5, 1996) ..................................... 19
15
16 Lozano v. AT&T Wireless Services, Inc.,
504 F.3d 718 (9th Cir. 2007) ............................................................................... 21
17
Maloney v. Indymac Mortg. Servs.,
18
No. CV 13-04781 DDP, 2014 WL 6453777 (C.D. Cal. Nov. 17,
19 2014) .................................................................................................................... 23
20 Marcus v. Apple Inc.,
21 No. C 14-03824 WHA, 2015 WL 1743381 (N.D. Cal. Apr. 16,
2015) .................................................................................................................... 12
22
23 Marriott Intl, Inc. v. Am. Bridge Bah., Ltd.,
193 So. 3d 902 (Fla. 3d DCA 2015).................................................................... 13
24
Noell Crane Sys. GmbH v. Noell Crane & Serv.,
25 677 F. Supp. 2d 852 (E.D. Va. 2009) .................................................................. 14
26
Oestreicher v. Alienware Corp.,
27 544 F. Supp. 2d 964 (9th Cir. 2009).............................................................. 11, 17
28
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES vi TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 8 of 36 Page ID #:247

1 Plastic Packaging Corp. v. Sun Chem. Corp.,


2 136 F. Supp. 2d 1201 (D. Kan. 2001) ........................................................... 13, 14

3 Polygon Northwest Co. LLC v. Louisiana-Pacific Corp.,


No. C11-620 MJP, 2012 WL 2504873 (W.D. Wash. June 28, 2012)................. 16
4
5 Rhynes v. Stryker Corp.,
No. 10-5619 SC, 2011 WL 2149095 (N.D. Cal. May 31, 2011) ........................ 22
6
Seattle Profl Engg Employees Assn v. Boeing Co.,
7
139 Wash. 2d 824 (2000) .................................................................................... 22
8
Shafer, Kline & Warren, Inc. v. The Allen Grp.-Kansas City, LLC,
9 No. 13-2472-JAR-TJJ, 2014 WL 1974525 (D. Kan. May 15, 2014) ........... 22, 23
10
Somers v. Apple, Inc.,
11 729 F.3d 953 (9th Cir. 2013) ............................................................................... 10
12 Sonner v. Schwabe N. Am., Inc.,
13 No. EDCV151358VAPSPX, 2017 WL 474106 (C.D. Cal. Feb. 2,
2017) (Phillips, J.) ............................................................................................... 24
14
Sprewell v. Golden State Warriors,
15
266 F.3d 979 (9th Cir. 2001) ................................................................................. 6
16
Stickrath v. Globalstar, Inc.,
17 No. C07-1941 TEH, 2008 WL 344209 (N.D. Cal. Feb. 6, 2008) ....................... 17
18
Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc.,
19 992 F. Supp. 2d 962 (C.D. Cal. 2014) ................................................................. 19
20 Taragan v. Nissan N. Am., Inc.,
21 No. C 09-3660 SBA, 2013 WL 3157918 (N.D. Cal. June 20, 2013).................. 18
22 Testo v. Russ Dunmire Oldsmobile, Inc.,
23 16 Wash. App. 39 (1976) .................................................................................... 19

24 TransPetrol, Ltd. v. Radulovic,


764 So. 2d 878 (Fla. 4th DCA 2000) .................................................................. 13
25
26 Troup v. Toyota Motor Corp.,
545 F. Appx 668 (9th Cir. 2013) ........................................................................ 19
27
Vess v. Ciba-Geigy Corp. USA,
28 317 F.3d 1097 (9th Cir. 2003) ............................................................................... 6
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 9 of 36 Page ID #:248

1 Vivendi SA v. T-Mobile USA Inc.,


2 586 F.3d 689 (9th Cir. 2009) ................................................................................. 7

3 White v. Potocska,
589 F. Supp. 2d 631 (E.D. Va. 2008) .................................................................. 13
4
5 Wilson v. Frito-Lay N. Am., Inc.,
961 F. Supp. 2d 1134 (N.D. Cal. 2013)............................................................... 25
6
Wilson v. Hewlett-Packard Co.,
7
668 F.3d 1136 (9th Cir. 2012) ................................................................. 13, 15, 17
8
Wolph v. Acer Am. Corp.,
9 No. C 09-01314 JSW, 2009 WL 2969467 (N.D. Cal. Sept. 14,
10 2009) .................................................................................................................... 16
11 Yagman v. General Motors Co.,
No. CV-14-4696-MWF, 2014 WL 4177295 (C. D. Cal. Aug. 22,
12
2014) .................................................................................................................. 8, 9
13
Zapata Fonseca v. Goya Foods, Inc.,
14 No. 16-CV-02559-LHK, 2016 WL 4698942 (N.D. Cal. Sept. 8,
15 2016) .................................................................................................................... 22
16 STATUTES AND OTHER AUTHORITIES
17 15 U.S.C. 45(n) ...................................................................................................... 21
18
15 U.S.C. 2310(a) .................................................................................................. 20
19
15 U.S.C. 2310(a)(1) ............................................................................................. 20
20
21 15 U.S.C. 2310(a)(3)(C)(ii) ................................................................................... 20

22 California Consumer Legal Remedies Act ............................................. 10, 11, 21, 22


23 California Unfair Competition Law .................................................................. passim
24 Fed. R. Civ. P. 9(b) ....................................................................................... 2, 6, 7, 11
25
Fed. R. Civ. P. 12(b)(6) .............................................................................................. 5
26
Federal Trade Commission Act ................................................................................ 21
27
28 Fla. Stat. Ann. 672.314 .......................................................................................... 19
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 10 of 36 Page ID #:249

1 Florida Deceptive & Unfair Trade Practices Act ................................... 10, 11, 13, 21
2
Kan. Stat. Ann. 50-626(a)(b) ......................................................................... 11, 21
3
Kansas Consumer Protection Act ........................................................... 10, 11, 13, 21
4
Magnuson-Moss Warranty Act ...................................................................... 2, 20, 21
5
6 Song-Beverly Warranty Act ................................................................................. 2, 20

7 Virginia Consumer Protection Act ............................................................... 10, 11, 13


8 Washington Consumer Protection Act ................................................... 10, 11, 13, 21
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES ix TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 11 of 36 Page ID #:250

1 INTRODUCTION
2 Plaintiffs concede in their Complaint that odors from a heating, ventilation
3 and air conditioning system (HVAC) can be produced by many different causes
4 unrelated to any design defect in the HVAC system. Odors introduced into the
5 vehicles cabin, for example, from outside sources such as exhaust fumes, dirty
6 gym clothes, and take-out food can accumulate in the HVAC system and be
7 released through the air vents. A blocked drainage hose or debris stuck in the
8 HVAC system can cause odors. Outside temperature, along with the frequency and
9 settings of HVAC system usage, can affect the occurrence of odors.
10 Notwithstanding the multiple potential sources of HVAC odors, Plaintiffs
11 assert that the HVAC systems in their vehiclesalong with more than 30 different
12 Toyota and Lexus models that Plaintiffs never purchasedcontain a design defect
13 that causes the retention of water, leading to odors, and, upon information and
14 belief, mold growth. On this basis, Plaintiffs seek to allege fraud-based and breach
15 of warranty claims against Toyota.
16 The viability of Plaintiffs Complaint depends, of course, on the existence of
17 the alleged odor-causing and mold-causing defect in their vehicles; however,
18 Plaintiffs conclusory allegations fall far short of pleading such a defect. Plaintiffs
19 Complaint pleads no facts that the HVAC system in any Plaintiffs vehicle actually
20 retains water, much less has developed any mold growth. Nor can an alleged defect
21 be presumed simply from the existence of odor from Plaintiffs HVAC systems,
22 given that Plaintiffs own pleading acknowledges that HVAC odor has multiple
23 potential causes unrelated to any design defect. This fundamental pleading failure
24 requires dismissal of Plaintiffs Complaint.
25 In addition to the overarching pleading defect, Plaintiffs Complaint is
26 deficient in other ways:
27 First, while Plaintiffs fraud-based claims arise under different state laws,
28 which vary widely, they each fail because Plaintiffs do not identify a material
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
MEMORANDUM IN SUPPORT OF
LOS ANGELES
1 TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 12 of 36 Page ID #:251

1 misrepresentation made by Toyota about their vehicles as required by Rule 9(b).


2 Plaintiffs also fail to identify any factual omission by Toyota that Toyota had a duty
3 to disclose. In this regard, it is undisputed that Toyota discloses information
4 regarding the operation and maintenance of the HVAC system in its owners
5 manuals, including the possibility of HVAC odor, thus, negating any failure to
6 disclose theory. In addition, there are no facts showing that Toyota had
7 knowledgelet alone exclusive knowledgeof any supposed defect when
8 Plaintiffs purchased their vehicles.
9 Second, Plaintiffs fail to plead a breach of warranty claim. Plaintiffs express
10 warranty claim fails because Plaintiffs identify no express warranty other than the
11 written warrantieswhich are limited to defects in materials and/or
12 workmanship, and which excludes design defects. Plaintiffs fail to state an
13 implied warranty of merchantability claim because they do not and cannot allege
14 any facts required to support a finding that their vehicles are not fit for their
15 ordinary purpose of providing transportation. Failure to plead an underlying breach
16 of warranty claim requires dismissal of Plaintiffs claims under the Song-Beverly
17 Warranty Act and the Magnuson-Moss Warranty Act.
18 Third, Plaintiffs have not otherwise alleged an unlawful or unfair claim
19 under state consumer protection laws because they have not alleged a predicate
20 violation and do not attempt to assert an unfair business practice.
21 Fourth, Plaintiffs equitable claims fail because Plaintiffs have alleged claims
22 that may entitle them to an adequate legal remedy. The factual bases for their
23 equitable claims are entirely duplicative of those legal claims.
24 Finally, Plaintiffs have no standing to pursue their sweeping claims on behalf
25 of a proposed class encompassing more than 30 other vehicle models Plaintiffs did
26 not purchase. In fact, Plaintiffs cannot satisfy even the most flexible test for
27 standing, because Plaintiffs do not allege any facts to plausibly show that the
28 HVAC systems in their vehicles are the same or even similar to the 34 other
MORGAN, LEWIS &
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES 2 TOYOTAS MOTION TO DISMISS
DB1/ 90970339.8
Case 2:17-cv-00035-VAP-KS Document 28-1 Filed 03/03/17 Page 13 of 36 Page ID #:252

1 disparate proposed class vehiclesranging from a 2006 subcompact car to a 2015


2 large sports utility vehicle. Toyota should not be subject to a massive discovery
3 fishing expedition regarding vehicles to which Plaintiffs have no connection.
4 I. RELEVANT BACKGROUND
5 A. Summary Of Plaintiffs Allegations.
6 Plaintiffs reside in different states and allege they purchased different model
7 Toyota and Lexus vehicles from five different dealerships at different times.
8 Compl. at 15 (new 2015 Toyota Sienna in Washington); 17 (new Lexus 2007
9 350 ES in Virginia); 19 (new 2014 Toyota Prius in California); 21 (new 2015
10 Toyota RAV4 in Kansas); 23 (new 2011 Toyota Sienna in Florida).
11 Plaintiffs contend that their vehicles contain a Defective HVAC System,
12 which they say emits noxious and foul odors into the vehicles as well as, on
13 information and belief . . . mold and other contaminants. Id. at 3 (emphasis
14 added). Plaintiffs assert that, on information and belief, the Defective HVAC
15 System [in their own vehicles] fails to adequately remove water from the
16 evaporator and surrounding enclosure. The moist environment promotes foul odors
17 and microbial growth (mold), which are emitted into the passenger compartment of
18 the Class Vehicles by the blower. Id. at 36 (emphasis added); see also id. at 3.
19 Each Plaintiff contends that he or she purchased his or her vehicle without
20 knowledge of the alleged design defect and corresponding safety hazard.
21 Plaintiffs Kennedy, Dey, and the Stockingers contend that they have been exposed
22 to noxious and foul odors emitted from their HVAC systems, which on
23 information and belief, is filled with mold and other contaminants. Id. at 16,
24 18, 20 (emphasis added). Even though Plaintiffs have the ability to test for the
25 presence of accumulated water or such mold or other contaminants, apparently
26 they have not done so and plead no facts to support their conclusory information
27 and belief allegations. Plaintiff Flinn does not even allege that she personally
28 experienced noxious and foul odors from her HVAC system. Id. at 22. And
MORGAN, LEWIS &
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 Plaintiff Casper alleges that unidentified occupants experienced such odors, but
2 does not specifically allege that he has experienced any such odors. Id. at 24.
3 No Plaintiff identifies a specific relevant advertisement or other affirmative
4 representation that he or she reviewed prior to making his or her purchase. Aside
5 from conclusory information and belief allegations, no Plaintiff alleges that his or
6 her HVAC system actually retains water or contains mold growth as a result of the
7 purported design defect. No Plaintiff alleges that he or she complained to Toyota
8 about the alleged defect, brought the vehicle in for repair, stopped driving the
9 vehicle, stopped using the HVAC system, or that the HVAC system failed to cool
10 and heat the vehicle.
11 Notwithstanding Plaintiffs failure to allege basic facts to support their
12 claims, they seek to represent millions of Toyota and Lexus owners and lessees
13 who own 38 different models spanning 11 model years. Yet Plaintiffs plead no
14 facts to show that the millions of proposed class vehicles share a common HVAC
15 system design, let alone a common design defect causing HVAC odors.
16 B. HVAC Odor May Be Caused By Multiple Factors Unrelated To
17 Any Alleged Design Defect.
18 The plausibility of Plaintiffs core legal conclusionthat a common design
19 defect caused the HVAC odor that some of them allegedly experiencedmust be
20 considered in light of the fact that HVAC odor may be caused by multiple,
21 independent factors that have nothing to do with any alleged design defect. Indeed,
22 the very documents attached to Plaintiffs Complaint provide several alternative
23 sources of HVAC odor unrelated to a design defect, including a [b]lockage of the
24 evaporator housing drain pipe; exterior and interior odors, such as air fresheners,
25 animals, dirt, or trash accumulating in the HVAC system; external odors
26 accumulating on the evaporator and released when the evaporator core changes
27 temperature; and debris entering the HVAC system. See Compl. at Exhs. A, B, C,
28 and D. The unverified complaints of third parties referenced in the Complaint
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1 further suggest other possible sources of HVAC odor, including wet carpets (id. at
2 p. 23), a stuck A/C drain flap (id.), and usage and environmental factors (id. at p. 27
3 [the odor occurs in the summer, in hot months with the AC is used on a daily
4 basis. It does not occur in the winter]). According to Plaintiffs own pleading,
5 therefore, HVAC odor, which is not unique to Toyota or Lexus vehicles,1 has
6 multiple causes unrelated to any alleged design defect.
7 C. The Owners Manuals Disclose The Possibility Of HVAC Odor.
8 Not only do multiple causes of HVAC odor exist, but Toyota affirmatively
9 discloses the possibility of HVAC odor to its customers. Each of Plaintiffs
10 vehicles came with an owners manual at the time of purchase. See Declaration of
11 Barry M. Hare (Hare Decl.) at 3; see also Request for Judicial Notice (RJN).
12 The owners manuals are also available online. Id. With the exception of the
13 manual for Plaintiff Kennedys 2007 Lexus ES 350 vehicle (for which the warranty
14 period has long since expired), the owners manuals expressly disclose:
15 Air conditioning odors
16 During use, various odors from inside and outside the vehicle may enter
into and accumulate in the air conditioning system. This may then
17 cause odor to be emitted from the vents.
18 To reduce potential odors from occurring:
It is recommended that the air conditioning system be set to outside air
19 mode prior to turning the vehicle off.
20 Id., e.g., at Exh. 1 [2011 Toyota Sienna owners manual excerpt].
21 II. LEGAL STANDARDS
22 To survive a motion to dismiss under Rule 12(b)(6), Plaintiffs must provide
23 more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
24 (2007). It is well-settled that [d]etermining whether a complaint states a plausible
25 claim for relief will . . . be a context-specific task that requires the reviewing court
26 to draw on its judicial experience and common sense. Ashcroft v. Iqbal, 556 U.S.
27
1
28 Another unverified complaint referenced in Plaintiffs Complaint states that the
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problem is occurring with other luxury cars (Jaguar, BMW). Compl. at p. 20.
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1 662, 679 (2009). In doing so, this Court must disregard legal conclusions and
2 conclusory statements, and must scrutinize the well-pleaded factual allegations to
3 ensure that they are more than merely consistent with a defendants liability.
4 Id. at 67779. Additionally, because Plaintiffs Complaint sounds in fraud, it is
5 subject to the heightened pleading standard set forth in Rule 9(b). Kearns v. Ford
6 Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). Rule 9(b) applies to both
7 misrepresentation and omission claims, and requires the complaint to set forth the
8 who, what, when, where, and how of the misconduct charged. Vess v. Ciba-
9 Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
10 In deciding the instant motion, the Court may consider documents subject to
11 judicial notice or incorporated by reference into the Complaint. A document is
12 incorporated by reference when the contents are alleged in a complaint or when
13 the plaintiffs claim depends on the contents of a document.2 Knievel v. ESPN,
14 393 F.3d 1068, 1076 (9th Cir. 2005). The Court need not accept as true
15 allegations that contradict matters properly subject to judicial notice or by exhibit.
16 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
17 III. ARGUMENT
18 A. All Claims Fail Because Plaintiffs Do Not Plausibly Allege Any
19 Design Defect That Caused Odors Or Mold in Their Vehicles.
20 Plaintiffs Complaint purports to assert claims arising from purported
21 misrepresentations, omissions, and breaches of warranty by Toyota about an
22 alleged defect in their HVAC systems. Thus, the alleged defect must be properly
23 pled in order for Plaintiffs Complaint to move forward with respect to all of these
24 2
Here, Plaintiffs owners manuals and warranty guides, and the Center for Disease
25 Control (CDC) webpage, are expressly referenced and central to Plaintiffs
26 omission-based claims and breach of warranty claims. See Compl., e.g., at 31
(referencing owners manuals), fn. 11 14 (referencing warranty and maintenance
27 guides), 49 (alleging that Toyota failed to disclose the defect to consumers at the
28 time of purchase or lease of the Class Vehicles (or anytime thereafter) . . .); fn. 8
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(referencing CDC webpage); see also RJN.
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1 purported claims. Plaintiffs assert that, on information and belief, the alleged
2 design defect causes the retention of moisture, leading to mold growth in and odors
3 from their HVAC systems. See Compl. at 36. Plaintiffs defect-related
4 allegations, however, fall short of meeting the plausibility threshold because (1)
5 Plaintiffs do not plead any specific facts to show the retention of water or the
6 corresponding presence of mold growth in their vehicles; and (2) Plaintiffs fail to
7 allege facts to connect the alleged defect to the odors they have purportedly
8 experienced, which cannot be assumed given the multiple causes of HVAC odor.
9 1. Plaintiffs fail to plead facts that their vehicles experienced
10 any mold-related safety hazard and they cannot rely upon
11 conclusory information and belief allegations to do so.
12 Plaintiffs information and belief allegations about the retention of water in
13 their own HVAC systems and a corresponding mold-related safety hazard are
14 entirely conclusory. Id. at 3, 36, 37. Plaintiffs allege no facts to support them.
15 Plaintiffs do not allege that they inspected their HVAC systems, tested their
16 vehicles for water retention or mold growth, or experienced abnormal levels of
17 mold in their vehicles. Plaintiffs defect theory relies upon the very conclusory
18 statements that Iqbal forbids. See, e.g., Iqbal, 556 U.S. at 681 (allegations that
19 defendant was the principal architect of discriminatory policy and that plaintiff
20 was subject to policy solely on account of protected characteristics were
21 conclusory and not entitled to be assumed true).
22 Plaintiffs allegations about a mold-causing defect in their own vehicles are
23 based entirely on information and belief, which is insufficient under
24 Iqbal/Twombly and Rule 9(b). Id. at 3, 16, 18, 20, 22, 24, 36, 37; see, e.g.,
25 Blantz v. Cal. Dept of Corr. & Rehab., 727 F.3d 917, 927 (9th Cir. Cal. 2013)
26 (conclusory allegations on information and belief are insufficient to state a claim
27 in the absence of specific factual allegations regarding [the defendants]
28 involvement in the actions giving rise to this lawsuit); see also Vivendi SA v. T-
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1 Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009) (holding information and
2 belief allegations regarding the defendants involvement in the allegedly
3 fraudulent scheme were insufficient under Iqbal/Twombly). For example, Plaintiffs
4 include a picture of an evaporator in their Complaint, asserting on information and
5 belief that it is a Lexus evaporator with evidence of mold growth. Id. at 39.
6 But this picture does not purport to be of any of Plaintiffs vehicles. The picture of
7 a different vehicle supposedly depicting mold growth underscores Plaintiffs
8 failure to conduct a basic inquiry about their own vehicles prior to filing their
9 Complaint, including taking steps to determine if they have any retained water or
10 mold growth in their own HVAC systems, which Plaintiffs claim cause odor.
11 Although allegations on information and belief may be considered when
12 the facts are peculiarly within the possession and control of the defendants, . . . or
13 where the belief is based on factual information that makes the inference of
14 culpability plausible, these exceptions do not apply here. Arista Records, LLC v.
15 Doe 3, 604 F.3d 110, 120-21 (2d Cir. 2010). The information and belief facts are
16 ones that are either known to Plaintiffs or are ascertainable by them. Plaintiffs are
17 in possession of their vehicles and only they can determine whether their HVAC
18 systems retain water or contain mold growth. See Yagman v. General Motors Co.,
19 No. CV-14-4696-MWF, 2014 WL 4177295, at *3 (C. D. Cal. Aug. 22, 2014)
20 (dismissing complaint for failing to plausibly allege a defect under Iqbal/Twombly,
21 in part because the [p]laintiff is in the best position to ascertain the condition of the
22 car engine, which evidently is still in his possession). Since Plaintiffs design
23 defect claims are dependent on the presence of odor produced by accumulated
24 water and mold and Plaintiffs have not pled facts establishing such water or mold,
25 Plaintiffs have failed to plausibly allege a design defect in their vehicles.
26 2. Plaintiffs fail to plead facts connecting the alleged design
27 defect to the odors they have purportedly experienced.
28 Plaintiffs defect theory fails for another reason: the mere existence of odor
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1 alleged in Plaintiffs vehicles is insufficient. As the Complaint acknowledges, odor


2 can be produced by many different causes.
3 Two cases illustrate the implausibility of odor-causing defect allegations. In
4 Decoteau v. FCA US LLC, No. 215CV00020MCEEFB, 2015 WL 6951296, at *1
5 (E.D. Cal. Nov. 10, 2015), the court held that the plaintiffs failed to plausibly plead
6 the existence of a defect with their vehicles. The plaintiffs alleged that their
7 vehicles surge forward or hesitate before taking off from a stop, stopped moving
8 while [ ] driving, and automatically move backward. Id. Based on these
9 experiences, the plaintiffs alleged that there must be defects with the transmission
10 causing the described injuries. Id. The court rejected the plaintiffs unsupported
11 assertion, holding that plaintiffs must also plausibly connect the existence of the
12 alleged defect to the injuries they claim to have suffered. Id. at *3.
13 Similarly, in Yagman, supra, 2014 WL 4177295, at *3, the plaintiff alleged
14 that the vehicles engine stopped running and it experienced a complete electrical
15 shutdown, and that after unsuccessful testing by a mechanic at a GM dealership,
16 the engine broke down again. Id. at *2. The plaintiff argued these allegations
17 were sufficient under Iqbal and Twombly because a jury could reasonably draw the
18 inference that the vehicle was defective. Id. The court rejected the plaintiffs
19 argument, finding he had only alleged an injury, not a defect. Id. at *3. The
20 court observed that a reasonable inference from pleaded facts does not necessarily
21 rise to the level of plausibility. The fact that the engine failed renders it merely
22 possible that a manufacturing defect was the cause . . . . Id.
23 Like Decoteau and Yagman, Plaintiffs have asserted only an alleged injury
24 undescribed odors in their vehicles. But the mere presence of odor is insufficient to
25 show a defect, particularly where there are obvious alternative explanation[s] of
26 HVAC odor that are completely unrelated to the alleged design defect, including
27 blockages introduced into the drain hoses, interior and exterior odors being brought
28 into the vehicle and accumulating in the HVAC system, usage patterns, and
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1 environmental conditions. See Twombly, 550 U.S. at 567 (the presence of an


2 obvious alternative explanation precludes finding that the plaintiff has plausibly
3 alleged its claims); see Sec. I.B (describing alternative causes of HVAC odors).
4 Plaintiffs allege no facts that odors in their vehicles are the result of accumulated
5 water or mold in their HVAC systems, as opposed to the many other potential
6 causes. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 965 (9th Cir. 2013)
7 (affirming dismissal of antitrust claim in part due to obvious alternative
8 explanations for the defendants music pricing).
9 Put simply, Plaintiffs have not plausibly alleged a design defect with their
10 HVAC systems, because there are many known, alternative causes of HVAC odor
11 and Plaintiffs allege nothing to link the odor in their vehicles to water or mold
12 accumulation in their HVAC systems. Thus, all of Plaintiffs claims fail.
13 B. Plaintiffs Fraud-Based Claims Fail For Multiple Reasons.
14 Plaintiffs failure to plead the existence of an odor-causing or mold-causing
15 defect is fatal to all of their claims. Additional reasons exist for discussing the
16 various counts in the Complaint.
17 The requirements of Plaintiffs claims under the California Consumer Legal
18 Remedies Act (CLRA), California Unfair Competition Law (UCL), Florida
19 Deceptive & Unfair Trade Practices Act (FDUTPA), Kansas Consumer
20 Protection Act (KCPA), Virginia Consumer Protection Act (VCPA), and
21 Washington Consumer Protection Act (WCPA), as well as their fraud and
22 negligent misrepresentation claims, vary from state to state. At a minimum,
23 however, to survive a motion to dismiss, Plaintiffs must identify a specific material
24 misrepresentation or omission that Toyota had a duty to disclose. Because
25 Plaintiffs Complaint fails to meet these basic requirements, their fraud-based
26 claims should be dismissed.
27 1. Plaintiffs have not alleged a misrepresentation by Toyota.
28 Plaintiffs do not identify a single representationlet alone a material
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1 misrepresentationmade to them by Toyota about their vehicles or HVAC


2 systems. See Kearns, 567 F.3d at 1125-26 (affirming dismissal of CLRA and UCL
3 claims where the plaintiff failed to plead particular misrepresentation relied upon,
4 when those misrepresentations were made, and by whom); Enomoto v. Space
5 Adventures, Ltd., 624 F. Supp. 2d 443, 456 (E.D. Va. 2009) (fraud is a necessary
6 element to establish a claim under the VCPA); accord Kan. Stat. Ann. 50-626(a)
7 (b) (the KCPA requires a misrepresentation of a material fact); accord Hangman
8 Ridge Training Stables, Inc., 105 Wash. 2d 778, 785 (1986) (the WCPA requires an
9 unfair or deceptive act); Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 135557
10 (S.D. Fla. 2012) (dismissing misrepresentation-based claims under FDUTPA
11 because plaintiff relied upon conclusory allegations without providing specific
12 facts). Iqbal/Twombly and Rule 9(b) plainly require more.
13 Moreover, generalized statements like Were confidentas you should
14 bethat your Toyota will provide you with many years of enjoyable driving, are
15 non-actionable puffery. Compl. at 116; see Oestreicher v. Alienware Corp., 544
16 F. Supp. 2d 964, 973 (9th Cir. 2009) (Generalized, vague, and unspecified
17 assertions constitute mere puffery . . . and hence are not actionable (internal
18 citation omitted)). Plaintiffs also plead no details regarding any statements,
19 including if and when each Plaintiff viewed such statements before purchasing their
20 vehicle. Thus, Plaintiffs misrepresentation-based claims should be dismissed.
21 2. Plaintiffs have not identified a material omission by Toyota.
22 Plaintiffs assert in conclusory fashion that Toyota failed to disclose the
23 existence of the Defective HVAC System, which they define as an HVAC system
24 that emits noxious and foul odors and, upon information and belief . . . mold and
25 other contaminants. Compl. at 3. Yet the possibility of HVAC odor is expressly
26 disclosed in the owners manuals accompanying Plaintiffs vehicles at the time of
27 purchase. Those owners manuals are also available online. See Sec. I.C; see also
28 Hare Decl. at 3. Regardless of what law applies, disclosure of allegedly omitted
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1 information refutes Plaintiffs omission-based claims. Courts have dismissed


2 similar claims as a matter of law when the alleged problem associated with the
3 supposed defect is disclosed in user guides or owners manuals that are available at
4 the time of purchase, and this Court should do the same here. See Marcus v. Apple
5 Inc., No. C 14-03824 WHA, 2015 WL 1743381, at *2 (N.D. Cal. Apr. 16, 2015)
6 (defendant satisfied any duty to disclose the alleged defect because the potential for
7 laptop to get hot and burn customers was included in the hard-copy user guides
8 included with each laptop sold); Barakezyan v. BMW of N.A., LLC, No.
9 CV1600173SJOGJSX, 2016 WL 2840803, *12 (C.D. Cal. Apr. 7, 2016) (finding
10 that information about a louder function-noise associated with carbon ceramic
11 brakes was available to Plaintiff pre-purchase because the defendant disclosed the
12 potential for brake noise in its owners manual, which the plaintiff had access to
13 at the dealership before purchase and eventually online).
14 Further, any assertion that Toyota failed to disclose an alleged mold-related
15 safety hazard fails because Plaintiffs do not allege the existence of any mold growth
16 in their own HVAC systems. See, e.g., Daugherty v. American Honda Motor Co.,
17 Inc., 51 Cal. Rptr. 3d 118, 130, n. 8 (2006) (conclusory allegations of safety risks
18 are insufficient when the complaint is devoid of factual allegations that the alleged
19 defect caused any physical injuries or posed any safety risk). Plaintiffs also do not
20 attempt to show that any mold in their vehicles is more than what normally exists in
21 the environment or any such level of mold poses a safety risk. See Declaration of
22 David L. Schrader at Exh. 1 [Center for Disease Control, Basic Facts: Molds in the
23 Environment] (Molds are found in virtually every environment and can be
24 detected, both indoors and outdoors, year round); see also RJN.
25 3. Plaintiffs have not alleged a duty to disclose by Toyota.
26 Plaintiffs omission-based claims must be dismissed for another reason.
27 Each of the state laws under which Plaintiffs assert their omission-based claims
28 requires Plaintiffs to show the existence of a duty to discloseand each generally
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1 rejects a broad duty to disclose when the parties are engaged in an arms-length
2 transaction. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir.
3 2012) (California courts have generally rejected a broad duty to disclose . . .);
4 White v. Potocska, 589 F. Supp. 2d 631, 642 (E.D. Va. 2008) (same under Virginia
5 law); Plastic Packaging Corp. v. Sun Chem. Corp., 136 F. Supp. 2d 1201, 1205 (D.
6 Kan. 2001) (same under Kansas law); TransPetrol, Ltd. v. Radulovic, 764 So. 2d
7 878, 879 (Fla. 4th DCA 2000) (stating that [a] defendants knowing concealment
8 or non-disclosure of a material fact may only support an action for fraud where
9 there is a duty to disclose); Favors v. Matzke, 53 Wash. App. 789, 796 (1989)
10 (same under Washington law).
11 Here, Plaintiffs contend that there is an exception to this general no duty to
12 disclose rule because Defendant possessed superior and exclusive knowledge
13 regarding the defect and the hazard associated with the Defective HVAC system.
14 Compl. at 119 (fraud); 105 (UCL); 209 (FDUTPA); 236 (KCPA); 257 (VCPA);
15 276 (WCPA). As described below, the state laws applicable to the named
16 Plaintiffs omission-based claims differ on this issue.3 Some state laws do not
17 recognize this exception, while others recognize variations of it (and only for
18 certain claims). Nonetheless, even if the law of all applicable states recognized this
19 exception, Plaintiffs have failed to satisfy its requirements.
20 a. Florida law does not have an exclusive knowledge
21 exception.
22 As a general matter, the prevailing view under Florida law does not
23 recognize a categorical exclusive knowledge exception to fraud-based claims.
24 Marriott Intl, Inc. v. Am. Bridge Bah., Ltd., 193 So. 3d 902, 908 (Fla. 3d DCA
25 2015) (dismissing fraud-based claim where there was no fiduciary duty and no
26 3
Plaintiffs Casper, Flinn, Kennedy, and the Stockingers allege that their claims
27 arise respectively under the laws of Florida, Kansas, Virginia, and Washington.
28 Compl. 202, 224, 248, 269. Plaintiff Deys claims are brought under California
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law, were he resides and purchased his vehicle. Compl. 19.
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1 partial disclosure requiring a further disclosure by the defendant); BCJJ, LLC v.


2 LeFevre, No. 8:09-CV-551-T-17EAJ, 2011 WL 989230, at *7 (M.D. Fla. Mar. 21,
3 2011) (In the absence of a fiduciary relationship, the nondisclosure of material
4 facts in an arms-length transaction is not actionable misrepresentation unless
5 Defendant M & I employed an artifice or trick to prevent an independent
6 investigation by Plaintiff BCJJ). Thus, Plaintiff Caspers fraud and negligent
7 misrepresentation claims must be dismissed as a matter of law.
8 b. Virginia law recognizes a limited exclusive
9 knowledge exception.
10 Under Virginia law, any exception based on exclusive knowledge requires
11 facts to show that the plaintiff exercised reasonable diligence but was unable to
12 discover the alleged omission. See Noell Crane Sys. GmbH v. Noell Crane & Serv.,
13 677 F. Supp. 2d 852, 872-873 (E.D. Va. 2009) (finding no duty to disclose where
14 the plaintiff failed to sufficiently allege a circumstance where one of the parties
15 has superior knowledge or means of knowledge, which is not within the fair and
16 reasonable reach of the other party and which he could not discover by the exercise
17 of reasonable diligence). Plaintiff Kennedy fails to allege facts to satisfy this
18 requirement and, as described below, he also cannot meet the additional
19 requirements to satisfy the exclusive knowledge exception.
20 c. Plaintiffs fail to satisfy the elements of the exclusive
21 knowledge exception under California, Kansas, and
22 Washington Law.
23 For those state laws that recognize this exception, pleading exclusive
24 knowledge requires Plaintiffs to show that Toyota knew of th[e] defect while
25 plaintiffs did not, and, given the nature of the defect, it was difficult to discover.
26 Herron v. Best Buy Co. Inc., 924 F. Supp. 2d 1161, 1175 (E.D. Cal. 2013) (internal
27 citations omitted); Plastic Packaging Corp., 136 F. Supp. 2d at 1205 (D. Kan.
28 2001) (same under Kansas law); Favors, 53 Wash. App. at 796 (same under
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1 Washington law).
2 Plaintiffs fail to satisfy their burden of establishing this exception for three
3 reasons. First, Plaintiffs fail to allege in the first instance that Toyota knew about
4 any alleged mold-causing or odor-causing defect at the time of Plaintiffs
5 purchases. Wilson, 668 F.3d at 1145 (requiring that the plaintiffs must sufficiently
6 allege that a defendant was aware of a defect at the time of sale to survive a motion
7 to dismiss). Plaintiffs rely primarily on technical service bulletins (TSBs) to
8 establish Toyotas knowledge (Compl. at 53-62), but TSBs are routine
9 communications to dealerships; they do not reflect knowledge of a defect. See Am.
10 Honda Motor Co. v. Sup. Ct., 199 Cal. App. 4th 1367, 1378 (2011) (A TSB is not
11 and cannot fairly be construed by a trial court as an admission of a design or other
12 defect, because TSBs are routinely issued to dealers to help diagnose and repair
13 typical complaints).
14 Moreover, although the TSBs cited by Plaintiffs acknowledge and describe
15 potential sources of HVAC odors, none of the TSBs show that Toyota was aware,
16 let alone possessed any exclusive knowledge, of any alleged design defectthat
17 is, the retention of water in the HVAC systems that causes mold growth and odors.
18 Several TSBs attached by Plaintiffs also involve vehicle models other than those
19 owned by Plaintiffs. See Compl. at Exh. A [May 9, 1997 TSB re: Air Conditioning
20 Evaporator Odor addressing vehicles not at issue in Plaintiffs Complaint]; Exh. B
21 [Nov. 29, 2011 TSB re: HVAC Odor involving Toyota Camrys]. See, e.g., Fisher
22 v. Honda N. Am., No. LA CV13-09285 JAK, 2014 WL 2808188, at *6 (C.D. Cal.
23 June 12, 2014) (finding TSBs insufficient to support an inference of knowledge
24 because three of the TSBs did not relate to the one model of vehicle at issue, and
25 while only one TSB related to a model of the alleged class vehicle, it did not refer
26 to the defect at issue).
27 Second, Plaintiffs also attempt to show knowledge based on a handful of
28 unverified and undescribed consumer complaints to NHTSA spanning 15 years, as
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1 well as conclusory allegations about unidentified pre-production testing, pre-


2 production design failure mode analysis, production design failure mode analysis,
3 early consumer complaints made to Defendants network of exclusive dealers,
4 aggregate warranty data compiled from those dealers, repair order and parts data
5 received from the dealers, consumer complaints to dealers and NHTSA, and testing
6 performed in response to consumer complaints. Compl. 50-52, 62. These
7 allegations are insufficient to show exclusive knowledge. See Grodzitsky v. Am.
8 Honda Motor Co., No. 2:12-CV-1142-SVW-PLA, 2013 WL 690822, at *6 (C.D.
9 Cal. Feb. 19, 2013) (finding insufficient complaint alleging knowledge based on
10 pre-release testing data, early consumer complaints to Honda and dealers, testing
11 done in response to complaints, replacement part sales data, aggregate data from
12 Honda dealers, and other internal sources); see also Herremans v. BMW of N. Am.,
13 LLC, No. CV 14-02363 MMM PJWX, 2014 WL 5017843, at *17 (C.D. Cal. Oct. 3,
14 2014) (same); see also Polygon Northwest Co. LLC v. Louisiana-Pacific Corp., No.
15 C11-620 MJP, 2012 WL 2504873, at *6 (W.D. Wash. June 28, 2012) (holding that
16 the mere existence of other customers having filed warranty claims does not
17 suggest LP knew the Rockwell siding was defective).
18 Third, Plaintiffs own allegations refute their assertion that Toyota had
19 exclusive knowledge about HVAC odor and its underlying source; indeed,
20 Plaintiffs identify numerous publicly available sources about the possibility of
21 HVAC odor, including NHTSA complaints and websites addressing HVAC odor
22 (i.e., Compl. at n. 7, citing the CARSPEC website). See, e.g., Herron, 924 F. Supp.
23 2d at 1175 (failing to plead exclusive knowledge where the plaintiff could have
24 readily recognized any deficiencies in his Laptops battery life because of publicly
25 available information); see Wolph v. Acer Am. Corp., No. C 09-01314 JSW, 2009
26 WL 2969467, at *4 (N.D. Cal. Sept. 14, 2009) (no exclusivity because [b]ased on
27 Plaintiffs[] own allegations information about the purportedly omitted fact was
28 publicly available).
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1 Moreover, Toyota disclosed the possibility of HVAC odor in nearly all of the
2 owners manuals for the Plaintiffs vehicleswhich were provided to Plaintiffs at
3 the time of purchase and available online. See Hare Decl. at Exhs. 14. Simply
4 put, Toyota did not have exclusive knowledge regarding the potential for HVAC
5 odor since it disclosed this very information. See Stickrath v. Globalstar, Inc., No.
6 C07-1941 TEH, 2008 WL 344209, at *4 (N.D. Cal. Feb. 6, 2008) (no exclusivity
7 where the defendant disclosed purportedly omitted information in public filings
8 and in an application with the FCC).
9 d. Plaintiff Dey cannot satisfy any unique exceptions
10 triggering a duty to disclose under California law.
11 California consumer protection laws also require that the duty to disclose be
12 tied to a safety issue. Wilson, 668 F.3d at 1141; see also Oestreicher, 544 F.
13 Supp. 2d at 971 (rejecting duty to disclose because alleged defect did not involve a
14 safety issue).4 As described above, Plaintiffs fail to allege a safety issue arising
15 from the alleged defect. Thus, no Plaintiff has alleged a duty to disclose under
16 California consumer protection laws.
17 Further, to the extent Plaintiff Dey (or any other Plaintiff) attempts to
18 establish a duty to disclose based on any active concealment by Toyota of the
19 alleged defect, this exception also fails. Although California recognizes an active
20 concealment exception, see LiMandri v. Judkins, 52 Cal. App. 4th 326, 336
21 (1997), Plaintiff Dey has not alleged any facts that Toyota actively concealed or
22 sought to suppress information in the public domain or obscure the consumers
23
4
24 No duty to disclose non-safety related defects that manifest during the warranty
period exists under California law. Wilson, 668 F.3d at 1141 (manufacturers duty
25 to consumers is limited to its warranty obligations absent either an affirmative
26 misrepresentation or a safety issue). Unless the product presents a safety risk, the
plaintiff must avail himself or herself of the remedies available through the
27 applicable warranty, as mandated by the California UCC. To create a different duty
28 to disclose during the warranty period would eviscerate the parties contractual
MORGAN, LEWIS &
relationshipand the bargained-for rights and remedies in that warranty.
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES 17 TOYOTAS MOTION TO DISMISS
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1 ability to discover it. Taragan v. Nissan N. Am., Inc., No. C 09-3660 SBA, 2013
2 WL 3157918, at *7 (N.D. Cal. June 20, 2013) (quoting Gray v. Toyota Motor Sales,
3 U.S.A., No. CV 08-1690 PSG JCX, 2012 WL 313703, at *9 (C.D. Cal. Jan. 23,
4 2012) (holding that mere nondisclosure does not constitute active
5 concealment)). Indeed, the disclosures about the potential for HVAC odor in the
6 owners manuals negates the plausibility of any active concealment theory.
7 C. Plaintiffs Fail To State Breach Of Warranty Claims.
8 1. Plaintiffs breach of express warranty claims fail for
9 multiple reasons.
10 Plaintiffs express warranty claims are based solely on the Toyota New
11 Vehicle Limited Warranty and the Lexus Basic Warranty. Compl. at 38. As
12 Plaintiffs acknowledge, however, these written warranties cover only defects in
13 materials and/or workmanship, which excludes design defects.5 See Bros.v.
14 HewlettPackard Co., No. C-06-02254, 2007 WL 485979, at *4 (N.D. Cal. Feb. 12,
15 2007) (Unlike defects in materials or workmanship, a design defect is
16 manufactured in accordance with the products intended specifications). Courts
17 routinely dismiss breach of express warranty claims based on a design defect when
18 the warranty covers only defects in materials and/or workmanship. See In re
19 Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab.
20 Litig., 754 F. Supp. 2d 1145, 1180-81 (C.D. Cal. 2010) (dismissing claim because
21 warranty guaranteeing against materials and workmanship did not extend to
22 design defects); see also Gertz v. Toyota Motor Corp., No. CV 10-1089, 2011 WL
23 3681647, at *3 (C.D. Cal. Aug. 22, 2011) (same).
24 Moreover, regardless of the type of defect at issue, a manufacturer is not
25 liable for breach of express warranty merely because a product manifests recurring
26 5
Plaintiffs occasionally reference a manufacturing defect in their Complaint, but
27 allege no facts to support this assertion. It is clear that Plaintiffs Complaint is
28 limited to an alleged design defect with Plaintiffs HVAC systems. See, e.g.,
MORGAN, LEWIS &
Compl. at 7, 16, 18, 20, 24.
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 failures during the warranty period. Rather, the question is whether [a plaintiff]
2 sought repairs, refunds, or replacements and, if so, whether [the manufacturer]
3 responded appropriately under the warranty. Coe v. Philips Oral Healthcare Inc.,
4 No. C13-518-MJP, 2014 WL 722501, at *7 (W.D. Wash. Feb. 24, 2014)
5 (dismissing breach of express warranty claim because the plaintiffs did not allege
6 that they exercised the warranty or that the defendant responded inappropriately).
7 Because no Plaintiff alleges that he or she sought repairs of the alleged defect
8 during the warranty period, the claims must be dismissed. See, e.g., In re Toyota
9 Motor Corp., 754 F. Supp. 2d at 1179 (applying rule).
10 2. Plaintiffs breach of implied warranty of merchantability
11 claims fail for multiple reasons.
12 [I]n the case of automobiles, the implied warranty of merchantability can be
13 breached only if the vehicle manifests a defect that is so basic it renders the vehicle
14 unfit for its ordinary purpose of providing transportation. Am. Suzuki Motor Corp.
15 v. Sup. Ct., 37 Cal. App. 4th 1291, 1296 (1995) (citation omitted); accord Testo v.
16 Russ Dunmire Oldsmobile, Inc., 16 Wash. App. 39, 44 (1976) (same under
17 Washington law); accord Lowe v. Mercedes Benz of N. Am., 103 F.3d 118,1996
18 WL 694433, at *4 (4th Cir. Dec. 5, 1996) (same under Virginia law); accord Fla.
19 Stat. Ann. 672.314 (products need only be fit for ordinary purpose[] for which
20 such goods are used). The implied warranty of merchantability does not require
21 an automobile to be perfect in every detail so long as it provides for a minimum
22 level of quality. Tae Hee Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d
23 962, 980 (C.D. Cal. 2014) (citation omitted); accord Intl Petroleum Serv., Inc. v. S
24 & N Well Serv., Inc., 230 Kan. 452, 454 (1982) (same under Kansas law); see also
25 Troup v. Toyota Motor Corp., 545 F. Appx 668, 669 (9th Cir. 2013) (affirming
26 dismissal of implied warranty claim because alleged defect did not compromise
27 the vehicles safety, render it inoperable, or drastically reduce its mileage range).
28 Plaintiffs conclusory allegation that their vehicles were not fit for the
MORGAN, LEWIS &
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 ordinary purpose of providing safe and reliable transportation is insufficient under


2 Iqbal/Twombly to support a breach of implied warranty of merchantability claim.
3 Compl. at 156. Plaintiffs do not contend that they cannot use or have stopped
4 using their vehiclesor even their HVAC systemsbecause of the alleged defect.
5 Plaintiffs do not allege that their HVAC systems have failed to heat and cool their
6 vehicles. Thus, their claims should be dismissed.
7 3. Plaintiffs MMWA and California statutory warranty claims
8 fail as a matter of law.
9 Plaintiff Deys Song-Beverly Act and Plaintiffs Magnuson-Moss Warranty
10 Act (MMWA) claims should be dismissed because Plaintiffs fail to allege a
11 breach of implied or express warranty under any state law. See Birdsong v. Apple,
12 Inc., 590 F.3d 955, 958, n. 2 (9th Cir. 2009) (dismissing Song-Beverly Act and
13 MMWA claims because no state law warranty claim had been pled).
14 Plaintiffs MMWA claim also fails because Plaintiffs do not allege that they
15 availed themselves of Toyotas informal dispute resolution procedures, as required
16 by 15 U.S.C. 2310(a). The MMWA contains an explicit congressional policy
17 statement encouraging warrantors to establish procedures whereby consumer
18 disputes are fairly and expeditiously settled through informal dispute settlement
19 mechanisms. Id. 2310(a)(1). Pursuant to this policy, a class of consumers may
20 not proceed in a class action . . . unless the named plaintiffs . . . initially resort to
21 [the warrantors informal dispute settlement mechanism]. Id. 2310(a)(3)(C)(ii).
22 Here, all of Plaintiffs vehicles are subject to warranty manuals with a Dispute
23 Settlement Program. Hare Decl. at Exhs. 59 [Toyota and Lexus warranty
24 manuals contain a Dispute Settlement Program]. Plaintiffs do not and cannot
25 allege that they went through this dispute resolution program.
26 D. Plaintiffs Also Fail To State A Claim Under The Unlawful And
27 Unfair Prongs of State Consumer Protection Laws.
28 Plaintiff Deys unlawful UCL claim fails because he has not pled a
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 predicate legal violation under the CLRA, Song-Beverly Act, or MMWA. See
2 Compl. at 102; Lopez v. Washington Mut. Bank, F.A., 302 F.3d 900, 907 (9th Cir.
3 2002) (requiring violation of a predicate law to support an unlawful UCL claim).
4 Plaintiff Dey also fails to allege a claim under the unfair prong of the UCL.
5 In order for a business act to be considered unfair, it must be tethered to some
6 legislatively declared policy or proof of some actual or threatened impact on
7 competition. Cel-Tech Comm., Inc., v. Los Angeles Cell. Tel. Co., 20 Cal. 4th 163,
8 187 (1999); see Lozano v. AT&T Wireless Services, Inc., 504 F.3d 718, 736 (9th
9 Cir. 2007) (rejecting the three part Federal Trade Commission Act (FTCA) test in
10 consumer cases). The Complaint is devoid of any allegations required for an
11 unfair UCL claim, and thus this claim should be dismissed.
12 The WCPA and FDUPTA follow the FTCAs definition of unfair, which
13 exists when a practice causes or is likely to cause substantial injury to consumers
14 which is not reasonably avoidable by consumers themselves and is not outweighed
15 by countervailing benefits. Klem v. Wash. Mut. Bank, 176 Wash. 2d 771, 787
16 (2013) (quoting 15 U.S.C. 45(n)); accord Adelson v. U.S. Legal Support, Inc., 715
17 F. Supp. 2d 1265, 1277 (S.D. Fla. 2010). Plaintiffs Casper and the Stockingers do
18 not even attempt to plead the elements of this theory. Thus, their claims under the
19 WCPA and FDUPTA, respectively, should be dismissed.6
20 E. Plaintiffs Equitable Claims Fail Because They Have Not
21 Established That There is No Adequate Remedy at Law Available.
22 Plaintiffs seek equitable relief in the form of restitution and injunctive relief
23 through their state law consumer protection claims and claims for unjust
24 enrichment. See Compl. at 95, 111, 184, 221, 245, 265, 284. These claims for
25 equitable relief fail for several fundamental reasons.
26 First, it is axiomatic that a court should determine the adequacy of damages
27
6
28 The KCPA has no unfair prong; instead, it prohibits a supplier from engaging in
MORGAN, LEWIS &
any deceptive act or practice. K.S.A. 50-626(a).
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 at law before resorting to equitable relief. See Franklin v. Gwinnett Cnty. Pub.
2 Sch., 503 U.S. 60, 62 (1992). Where the claims pleaded by a plaintiff may entitle
3 her to an adequate remedy at law, equitable relief is unavailable. Rhynes v. Stryker
4 Corp., No. 10-5619 SC, 2011 WL 2149095, at *4 (N.D. Cal. May 31, 2011)
5 (emphasis added); accord Licul v. Volkswagen Grp. of Am., Inc., No. 13-61686-
6 CIV, 2013 WL 6328734, at *7 (S.D. Fla. Dec. 5, 2013) (Florida law); accord
7 Shafer, Kline & Warren, Inc. v. The Allen Grp.-Kansas City, LLC, No. 13-2472-
8 JAR-TJJ, 2014 WL 1974525, at *2 (D. Kan. May 15, 2014) (Kansas law); accord
9 Seattle Profl Engg Employees Assn v. Boeing Co., 139 Wash. 2d 824, 839 (2000)
10 (Washington law). Here, Plaintiffs allege they are entitled to an adequate legal
11 remedy through their breach of warranty, fraud, and statutory consumer protection
12 claims, which may entitle them to damages. See Compl., e.g., at 124, 147, 159,
13 198, 220, 244, 265, 283. Thus, the Complaint does not and cannot sufficiently
14 allege that an adequate legal remedy is not available. Durkee v. Ford Motor Co.,
15 No. C 14-0617 PJH, 2014 WL 4352184, at *2 (N.D. Cal. Sept. 2, 2014).
16 Second, Plaintiffs claims for equitable relief fail because they allege no
17 distinction between the factual basis for their claims seeking equitable remedies and
18 their claims seeking legal remedies. See Zapata Fonseca v. Goya Foods, Inc., No.
19 16-CV-02559-LHK, 2016 WL 4698942, * 7 (N.D. Cal. Sept. 8, 2016) (because the
20 plaintiffs claims seeking equitable relief rel[ied] upon the same factual predicates
21 as . . . [the] [p]laintiffs legal causes of action . . . they must be dismissed).
22 Accordingly, Plaintiffs requests for equitable relief, including their UCL, CLRA,
23 and unjust enrichment claims, should be dismissed.7
24 Third, Plaintiffs claims for unjust enrichment (Compl. at 179 185) must
25 be dismissed because Plaintiffs allege the existence and enforceability of an express
26 contract and unjust enrichment is unavailable to redefine that relationship. See
27
7
28 The UCL only allows for equitable remedies. See Korea Supply Co. v. Lockheed
MORGAN, LEWIS &
Martin Corp., 29 Cal. 4th 1134, 1144 (2003).
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 Maloney v. Indymac Mortg. Servs., No. CV 13-04781 DDP, 2014 WL 6453777, *7


2 (C.D. Cal. Nov. 17, 2014) (applying rule); see also Brown v. Transurban USA. Inc.,
3 144 F. Supp. 3d 809, 844 (E.D. Va. 2015) ([A] condition precedent to the assertion
4 of . . . a[n] [unjust enrichment] claim is that no express contract exists between the
5 parties) (internal citation omitted); Shafer, Kline & Warren, Inc., 2014 WL
6 1974525, at *2 (same under Kansas law); Diamond S Dev. Corp. v. Mercantile
7 Bank, 989 So. 2d 696, 697 (Fla. 5th DCA 2008) (same under Florida law);
8 Chandler v. Wash. Toll Bridge Authority, 17 Wash. 2d 591, 605 (1943) (same under
9 Washington law).
10 Lastly, Plaintiff Deys unjust enrichment claim should be dismissed
11 because no independent cause of action for unjust enrichment exists under
12 prevailing California law. See In re Toyota Motor Corp., 754 F. Supp. 2d at 1193-
13 94 (Simply put, there is no cause of action in California for unjust enrichment);
14 accord Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015).
15 F. Plaintiffs Do Not Have Standing To Pursue Claims Regarding
16 Vehicles They Did Not Purchase.
17 In the Ninth Circuit, there is no controlling authority on whether Plaintiffs
18 have standing to sue for products that they did not purchase. In re 5-hour
19 ENERGY Mktg. & Sales Practices Litig., No. 13-2438 PSG (PLAX), 2017 WL
20 385042, at *13 (C.D. Cal. Jan. 24, 2017). Courts have taken two different
21 approachesboth of which apply significant standing limits on named plaintiffs
22 who seek to pursue class claims based upon products that they themselves did not
23 purchase. These limits help ensure that a company is not subject to burdensome
24 class-wide discovery regarding products which have no connection to the Plaintiffs.
25 Plaintiffs lack standing under both approaches.
26 Under one line of authority, when a plaintiff asserts class claims based both
27 on products that she purchased and products that she did not purchase, claims
28 relating to products not purchased by the named Plaintiffs must be dismissed for
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
LOS ANGELES 23 TOYOTAS MOTION TO DISMISS
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1 lack of standing. Granfield v. NVIDIA Corp., No. C 11-05403JW, 2012 WL


2 2847575, at *6 (N.D. Cal. July 11, 2012) (emphasis added); Carrea v. Dreyers
3 Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D. Cal.
4 Jan. 10, 2011) (applying principle); Johns v. Bayer Corp., No.
5 09CV1935DMSJMA, 2010 WL 476688, *45 (S.D. Cal. Feb. 9, 2010) (same).
6 Plaintiffs clearly cannot satisfy this standard. Plaintiffs allege that they purchased
7 four vehicle models (a Toyota Sienna, a Lexus 350 ES, a Toyota Prius, and a
8 Toyota RAV4). Thus, Plaintiffs lack standing to pursue claims regarding the 34
9 other makes and models of Toyota and Lexus vehicles that they did not purchase.
10 A second line of authority recognizes that a plaintiff may have standing to
11 assert claims for unnamed class members based on products he or she did not
12 purchase so long as the products and alleged misrepresentations are substantially
13 similar. Brown v. Hain Celestial Grp., Inc., 913 F. Supp. 2d 881, 890 (N.D. Cal.
14 2012) (emphasis added). This Court recently applied this standard in the context of
15 class certification. Sonner v. Schwabe N. Am., Inc., No. EDCV151358VAPSPX,
16 2017 WL 474106, at *3 (C.D. Cal. Feb. 2, 2017) (Phillips, J.); see also Hass v.
17 Citizens of Humanity, LLC, No. 14-CV-1404 JLS (WVG), 2016 WL 7097870, at *7
18 (S.D. Cal. Dec. 6, 2016) (dismissing claims based upon products plaintiff did not
19 purchase because no facts showing those products and their labels are substantially
20 similar to the Ingrid brand jeans Plaintiff purchased).
21 Even under a substantially similar standard, Plaintiffs lack standing to
22 pursue claims on behalf of the vehicles they never purchased. Plaintiffs seek to
23 engage in a massive class-wide discovery fishing expedition based upon the naked
24 and insufficient legal conclusion that all 38 models of Toyota and Lexus vehicles
25 ranging from subcompact cars to large sports utility vehicles and spanning 11
26 model yearshave the same alleged defect. But Plaintiffs fail to allege a single
27 fact about the other 34 vehicles they never purchasedmuch less that those
28 vehicles have the same, or even similar, HVAC systems to the specific models
MORGAN, LEWIS &
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 Plaintiffs purchased. Indeed, Plaintiffs very pleading shows the opposite; the
2 October 17, 2013 Safety Recall for HVAC Assemblywhich has nothing to do
3 with HVAC odorstates that only certain Avalon, Camry, and Venza vehicles are
4 covered by the recall because [t]he HVAC assembly used on other vehicles is of a
5 different design. Compl. at Exh. E. See e.g. Wilson v. Frito-Lay N. Am., Inc., 961
6 F. Supp. 2d 1134, 1142 (N.D. Cal. 2013) (dismissing claims regarding unpurchased
7 products with prejudice because the court will not assume that each of these subtly
8 different Products is like all the others and plaintiffs have to say more, especially
9 when they are asserting standing as to Products they did not purchaseotherwise
10 their pleadings amount to unacceptably bare legal conclusions).
11 Likewise, because Plaintiffs do not allege any facts about the marketing of
12 the other 34 different vehicles they never purchased, Plaintiffs do not and cannot
13 show that any unidentified misrepresentations or omissions they rely upon were
14 uniform across the sale of those disparate vehicleswhich took place at different
15 times and dealerships across the country.
16 Put simply, Plaintiffs lack standing to bring claims for injuries regarding
17 vehicles about which they have asserted no facts and to which they have no
18 connection. Plaintiffs should not be entitled to engage in a class-wide discovery
19 fishing expedition over such claims based on a sweeping and conclusory allegation
20 of a supposed common defect. Although all of Plaintiffs claims should be
21 dismissed in this action, at a minimum, the Court should dismiss the claims as to
22 models not purchased by the named Plaintiffs.
23 IV. CONCLUSION
24 For the foregoing reasons, Toyota respectfully requests the Court grant this
25 motion to dismiss Plaintiffs Complaint.
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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1 Dated: March 3, 2017 MORGAN, LEWIS & BOCKIUS LLP


2 David L. Schrader
Esther K. Ro
3 Jahmy S. Graham
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By /s/ David L. Schrader
6 David L. Schrader
7 Attorneys for Defendant
Toyota Motor Sales, U.S.A., Inc.
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ATTORNEYS AT LAW MEMORANDUM IN SUPPORT OF
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