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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`JUSTIN OCAMPO, et al.,
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`Plaintiffs,
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`v.
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`APPLE INC.,
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`Case No. 5:20-cv-05857-EJD
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`ORDER GRANTING MOTION TO
`DISMISS
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`Re: Dkt. No. 38
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`Defendant.
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`Plaintiffs Justin Ocampo, Fernando Pineiro, Tyler Hutchinson, Hisham Khan, and Diana
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`Crow (“Plaintiffs”) bring this action against Defendant Apple Inc. (“Defendant”) on behalf of
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`themselves and members of a putative class, asserting thirteen claims related to an alleged product
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`defect in certain MacBook Pro laptops. Before the Court is Defendant’s motion to dismiss the
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`second amended class action complaint (“SAC”). Defendant’s Motion to Dismiss Second
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`Amended Complaint (“Mot.”), Dkt. No. 38. On April 2, 2021, Plaintiffs filed an opposition, to
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`which Defendant filed a reply. See Plaintiffs’ Opposition to Defendant’s Motion to Dismiss
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`(“Opp.”), Dkt. No. 43; Defendant Apple Inc.’s Reply in Support of Motion to Dismiss (“Reply”),
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`Dkt. No. 50. For the reasons detailed below, the Court GRANTS the motion with limited leave
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`to amend.1
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`I.
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`BACKGROUND
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`In October 2016, Defendant released its new 13-inch and 15-inch MacBook Pro models.
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`SAC ¶ 2. Certain MacBook Pro models include a Touch Bar, a small strip at the top of the screen
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`1 On June 9, 2021, the Court found this motion appropriate for decision without oral argument
`pursuant to Civil Local Rule 7-1(b). See Dkt. No. 52.
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`that features a light-up touch-based panel that replaces certain function keys on the keyboard.
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`SAC ¶ 2. Defendant advertised the MacBook Pro as the thinnest and lightest MacBook Pro model
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`ever, weighing 3 pounds and measuring 14.9 mm of thickness. SAC ¶ 2. Defendant also
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`announced that display of the MacBook Pro would be 67 percent brighter, have a 67 percent better
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`contrast ratio, and display 25 percent more colors compared to the previous model. SAC ¶ 2.
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`Plaintiff alleges that these representations were false. SAC ¶ 3. To support the compact
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`design, Defendant used thin, flexible ribbon cables (“flex cables”) to connect the display to a
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`display controller board. SAC ¶ 3. These flex cables wrap tightly over the controller board. SAC
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`¶ 3. Plaintiff alleges that the flex cables wore out over time through normal use of the opening
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`and closing the laptop display because the cables were not long enough. SAC ¶ 3. As a result, the
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`flex cables eventually stopped connecting the controller board to the display screen, which caused
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`the laptop’s display backlight to show dark spots across the screen that interfered with text and
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`images or caused the screen to go completely dark. SAC ¶¶ 3, 4, 36 (“The deterioration of the flex
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`cables results in the display screen exhibiting dark spots and/or in [sic] the display screen turning
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`completely black when the laptop is open[ed] beyond certain angles (with some consumers
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`complaining of experiencing issues if they opened the screen beyond certain degrees) and/or
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`complete monitor failure. Therefore, consumers are prevented from using their laptops for their
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`ordinary and intended purpose: to open the display screen beyond certain degrees when using the
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`laptop and/or using the laptop as a portable device.”). Plaintiffs allege that the 13-inch and 15-
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`inch 2016 Macbook Pros, and all later MacBook Pros, have the same allegedly defective flex
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`cable design. See SAC ¶ 4, 12, 43, 167, 194, 205.
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`Defendant provides MacBook Pro purchasers with a one-year limited warranty, and
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`consumers may elect to purchase an AppleCare service plan extending the duration and scope of
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`coverage.2 The Limited Warranty warrants “against defects in materials and workmanship when
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`2 Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of the Limited
`Warranty in effect when Plaintiffs allegedly purchased their devices. See Declaration of David R.
`Singh (“Singh Decl.”), Ex. A, Dkt. No. 38-1.
`Case No.: 5:20-cv-05857-EJD
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`used normally in accordance with Apple’s published guidelines for a period of ONE (1) YEAR
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`from the date of original retail purchase by the end-user purchaser (‘Warranty Period’).” Signh
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`Decl., Ex. A. The warranty does not warrant against “defects caused by normal wear and tear or
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`otherwise due to the normal aging of the Apple Product.” Id.
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`In May 2019, Defendant launched the 13-inch MacBook Pro Display Backlight Service
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`Program (the “Backlight Service Program”). SAC ¶ 7. Pursuant to this program, Apple agreed to
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`replace displays for 13-inch 2016 Macbook Pros that experienced a stage lighting effect (e.g.,
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`intermittent vertical bright areas across the bottom of the screen) or a total failure of the display.
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`Singh Decl., Ex. B. Defendant also agreed to refund those who paid to have their displays fixed.
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`Plaintiff Ocampo, who filed the initial complaint in this action, “submitted his MacBook Pro to
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`Apple for a free repair” and “received his laptop approximately 2 to 3 days later.” SAC ¶ 54.
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`During this time, “Plaintiff Ocampo was without a laptop and Defendant did not offer to provide
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`[him] a loaner laptop.” SAC ¶ 54.
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`Plaintiffs all owned impacted MacBook Pros. Plaintiff Ocampo owned a 13-inch 2016
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`MacBook Pro, SAC ¶ 47; Plaintiff Pineiro owned a 13-inch 2016 MacBook Pro, SAC ¶ 56;
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`Plaintiff Hutchinson owned a 15-inch 2016 MacBook Pro, see SAC ¶ 63; Plaintiff Khan owned a
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`15-inch 2016 MacBook Pro, see SAC ¶ 70; Plaintiff Khan owned a 15-inch 2016 MacBook Pro,
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`SAC ¶ 70; and Plaintiff Crow owned a 15-inch 2016 MacBook Pro, SAC ¶ 76.
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`On January 13, 2021, Plaintiff Ocampo, and four other purchasers of MacBook Pro
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`devices, Fernando Pineiro, Tyler Hutchison, Hisham Khan, and Diana Crow, filed the SAC,
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`purporting to represent a nationwide class of “[a]ll individual consumers in the United States who
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`purchased model year 2016 or later Mac[B]ook Pro laptops at any time beginning 4 years
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`preceding the filing of this Complaint and continuing to the present” and subclasses limited to
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`consumer residents of California, Florida, Hawaii, and New York. SAC ¶ 89. Plaintiffs assert
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`thirteen claims against Apple: violations of California’s Consumer Legal Remedies Act (“CLRA”)
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`(Count I), Song-Beverly Consumer Warranty Act (“SBA”) (Count II), and the federal Magnuson-
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`Moss Warranty Act (“MMWA”) (Count III); violations of the Florida Deceptive and Unfair Trade
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`Case No.: 5:20-cv-05857-EJD
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 4 of 11
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`Practices Act (“FDUTPA”) (Count IV), New York General Business Law (“GBL”) Sections 349
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`and 350 (Counts VI and VII), Hawaii Unfair and Deceptive Trade Practices Act (“HUDTPA”)
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`(Count IX), Hawaii Uniform Deceptive Trade Practice Act (“HDTPA”) (Count X), and the
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`consumer fraud statutes of all 50 states and the District of Columbia (the “State Consumer Fraud
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`Acts” claim) (Count XII); violations of implied warranty of merchantability under Florida,
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`Hawaii, and New York law (Counts V, VIII, and XI) (collectively, the “Implied Warranty”
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`claims); and fraudulent concealment (Count XIII).
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`II.
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`LEGAL STANDARD
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`A. Rule 12(b)(6)
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`Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with enough
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`specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which
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`it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations marks omitted). A
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`complaint which falls short of the Rule 8(a) standard may therefore be dismissed if it fails to state
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`a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule
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`12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts
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`to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097,
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`1104 (9th Cir. 2008). When deciding whether to grant a motion to dismiss, the Court must accept
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`as true all “well pleaded factual allegations” and determine whether the allegations “plausibly give
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`rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court must also
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`construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915
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`F.2d 1242, 1245 (9th Cir. 1989). While a complaint need not contain detailed factual allegations,
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`it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp., 550 U.S. at 570).
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`A court generally may not consider any material beyond the pleadings when ruling on a
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`Rule 12(b)(6) motion. If matters outside the pleadings are considered, “the motion must be treated
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`as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). However, documents
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`appended to the complaint, incorporated by reference in the complaint, or which properly are the
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`subject of judicial notice may be considered along with the complaint when deciding a Rule
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`12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); see also Hal
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`Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
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`Likewise, a court may consider matters that are “capable of accurate and ready determination by
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`resort to sources whose accuracy cannot reasonably be questioned.” Roca v. Wells Fargo Bank,
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`N.A., 2016 WL 368153, at *3 (N.D. Cal. Feb. 1, 2016) (quoting Fed. R. Evid. 201(b)).
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`B. Rule 9(b)
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`Consumer protection claims that sound in fraud are subject to the heightened pleading
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`requirements of Federal Rule of Civil Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317
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`F.3d 1097, 1102 (9th Cir. 2003); San Miguel v. HP Inc., 317 F. Supp. 3d 1075, 1084 (N.D. Cal.
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`2018). Rule 9(b) requires that “a party must state with particularity the circumstances constituting
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`fraud.” Fed. R. Civ. P. 9(b). The circumstances constituting the fraud must be “specific enough to
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`give defendants notice of the particular misconduct which is alleged to constitute the fraud
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`charged so that they can defend against the charge and not just deny that they have done anything
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`wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). Therefore, a party alleging
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`fraud must set forth “the who, what, when, where, and how” of the misconduct. Vess, 317 F.3d at
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`1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). “[I]n a case where fraud is
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`not an essential element of a claim, only allegations . . . of fraudulent conduct must satisfy the
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`heightened pleading requirements of Rule 9(b)” while “[a]llegations of non-fraudulent conduct
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`need satisfy only the ordinary notice pleading standards of Rule 8(a).” Id. at 1104–05.
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`With respect to Plaintiffs’ omissions-based fraud claims, “the pleading standard is lowered
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`on account of the reduced ability in an omission suit ‘to specify the time, place, and specific
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`content, relative to a claim involving affirmative misrepresentations.’” Barrett v. Apple Inc., 2021
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`WL 827235, at *7 (N.D. Cal. Mar. 4, 2021) (quoting In re Apple & AT & TM Antitrust Litig., 596
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`F. Supp. 2d 1288, 1310 (N.D. Cal. 2008)); see also Falk v. Gen. Motors Corp., 496 F. Supp. 2d
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`1088, 1099 (N.D. Cal. 2007).
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`Case No.: 5:20-cv-05857-EJD
`ORDER GRANTING MOTION TO DISMISS
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 6 of 11
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`III. DISCUSSION3
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`A. Fraud Claims (Counts I–II, IV, VI–VII, IX–X, and XII–XIII)
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`Plaintiff’s CLRA, SBA, GBI, FDUTPA, HUDTPA, and HDTPA, State Consumer Frauds
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`Acts, and fraudulent concealment claims are grounded in fraud. See, e.g., SAC ¶¶ 105, 128, 154,
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`156, 163, 169, 196, 202, 222, 233. Regardless of the label attached to the claim, allegations
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`grounded in fraud are subject to Rule 9(b)’s pleading requirements. See Vess v. Ciba-Geigy Corp.
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`USA, 317 F.3d 1097, 1103–04 (9th Cir. 2003). Even where fraud is not an element of the
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`underlying claim, Rule 9(b) applies where a complaint relies on a unified course of fraudulent
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`conduct as the basis of that claim. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.
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`2009).
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`1. Affirmative Representations
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`Plaintiffs allege that Defendant committed fraud through affirmative representations in its
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`2016 promotional campaign for MacBook Pros, specifically Defendant’s statements regarding the
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`“brightness” of certain MacBook Pro displays. Opp. at 30. The SAC alleges that Defendant
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`represented: (1) that Macbook Pros operate at “500 nits brightness” and have a “67% brighter
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`display than prior models,” SAC ¶¶ 30, 32 & n.18, 35–38; (2) that the new display in the
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`MacBook Pros “is the best ever in a Mac notebook,” SAC ¶ 27; and (3) that the new Macbook Pro
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`was the “gold standard” that “ensures truer-to-life pictures with realistically vivid details,” SAC
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`¶¶ 2, 28, 31, 34, 140. Additionally, Plaintiff notes that Defendant’s website publicly represented
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`that their computers last for “four years.” See Opp. at 30.
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`In Taleshpour v. Apple, 2021 WL 3037703, at *3–5 (N.D. Cal. July 19, 2021)
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`(“Taleshpour II”), this Court determined that the above statements were not actionable. Pursuant
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`to Taleshpour II, the Court holds that Plaintiffs have not stated any fraud claims based on
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`affirmative misrepresentations.
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`3 Given the overlap between this case and Taleshpour, the Court focuses its discussion on the
`merits of Plaintiffs’ claims and does not address Defendant’s Article III standing arguments.
`Case No.: 5:20-cv-05857-EJD
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 7 of 11
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`2. Fraud by omission
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`Plaintiffs also pursue a fraud-by-omission theory, based on the theory that Defendant failed
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`to disclose known defects in the MacBook Pros. “To state a claim for fraudulent omission, the
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`omission must be contrary to a representation actually made by the defendant, or an omission of a
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`fact the defendant was obliged to disclose.” In re Apple Inc. Device Performance Litig., 386 F.
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`Supp. 3d 1155, 1175 (N.D. Cal. 2019) (internal citation omitted). “When a defect does not relate
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`to an unreasonable safety hazard, a defendant has a duty to disclose when (1) the omission is
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`material; (2) the defect is central to the product’s function; and (3) at least one of the following
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`four facts is met: the defendant is the plaintiff’s fiduciary; the defendant has exclusive knowledge
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`of material facts not known or reasonably accessible to the plaintiff; the defendant actively
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`conceals a material fact from the plaintiff; or the defendant makes partial representations that are
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`misleading because some other material fact has not been disclosed.” Id. at 1176. A purported
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`defect that manifests outside of the warranty period is not material as a matter of law. See id. at
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`1178 (dismissing omission claims for defect manifesting outside of the express warranty period
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`because “consumer fraud statutes cannot be used to extend a product’s warrant[y]”); accord
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`Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 972 (N.D. Cal. 2008) (“A contrary holding
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`would eliminate term limits on warranties, effectively making them perpetual or at least for the
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`‘useful life’ of the product.”).
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`Pursuant to the SAC, the defects identified “typically manifested after Apple’s one-year
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`warranty.” SAC ¶ 8. The omission of the alleged defects was therefore not material because
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`Plaintiffs did not experience the alleged defect during the warrantied life of their MacBook Pros
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`and the alleged defect “typically” did not manifest during the warranty period. Plaintiffs argue
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`that the omission was material because it would “eventually” result in failure of each class
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`member’s display screen. See Opp. at 25. However, as stated in this Court’s Taleshpour II order,
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`if the defect arises outside the warranty period, the manufacturer only has a duty to disclose
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`“safety issues.” 2021 WL 3037703, at *6 (collecting cases). Plaintiffs have not alleged that the
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`defect arose before the expiration of the warranty period. SAC ¶¶ 8, 47–50, 56–58, 63–65, 70–72,
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`Case No.: 5:20-cv-05857-EJD
`ORDER GRANTING MOTION TO DISMISS
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 8 of 11
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`76–78. Thus, Defendant only had a duty to disclose safety issues. Plaintiffs have not alleged that
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`the alleged defects presented a safety hazard. Accordingly, the Court finds that because Plaintiffs
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`cannot establish the materiality requirement for a duty to disclose, Plaintiffs’ omissions-based
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`claims, including their claim for fraudulent concealment, are dismissed.
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`B. Implied Warranty Claims (Counts V, VIII, and XI)
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`Plaintiffs allege that Defendant breached the implied warranty of merchantability under
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`Florida, New York, and Hawaii law. Defendant argues that these claims fail because Defendant
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`effectively disclaimed all implied warranties.
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`Sellers in each of the relevant states in this case may modify or exclude the implied
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`warranty of merchantability with a conspicuous disclaimer. See Speier-Roche v. Volkswagen Grp.
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`of Am. Inc., 2014 WL 1745050, at *8 (S.D. Fla. Apr. 30, 2014); Meserole v. Sony Corp. of Am.,
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`Inc., 2009 WL 1403933, at *9 (S.D.N.Y. May 19, 2009) (“U.C.C. § 2-316 permits manufacturers
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`to limit the duration of implied warranties to the duration of their express warranties if such
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`limitation is clear and conspicuous.”); Keahole Point Fish LLC v. Skretting Canada Inc., 971 F.
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`Supp. 2d 1017, 1036 (D. Haw. 2013) (“The implied warranty of fitness may be disclaimed as long
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`as it is in writing and conspicuous.”); see also Priano-Keyser v. Apple, Inc., 2019 WL 7288941, at
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`*9 (D.N.J. Dec. 30, 2019) (finding Apple’s disclaimer of implied warranties sufficiently
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`conspicuous where it was “printed in capital letters near the beginning of the Limited Warranty”).
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`Defendant’s Limited Warranty states in clear language that Apple disclaims all implied
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`warranties, including “WARRANTIES OF MERCHANTABILITY” (capital letters in original).
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`Singh Decl., Ex. A. The section heading, “WARRANTY LIMITATIONS SUBJECT TO
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`CONSUMER LAW,” is in all capital letters and underlined, and the disclaimed language appears
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`near the top of the warranty. Id. The Court finds these characteristics make the disclaimer
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`conspicuous, such that Defendant effectively disclaimed or limited all implied warranties. See
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`Taleshpour v. Apple Inc., 2021 WL 1197494, at *12 (N.D. Cal. Mar. 30, 2021) (finding this
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`warranty to effectively disclaim or limit all implied warranties).
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`Case No.: 5:20-cv-05857-EJD
`ORDER GRANTING MOTION TO DISMISS
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 9 of 11
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`Because the Limited Warranty effectively prevents Plaintiffs from bringing implied
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`warranty claims, the Court GRANTS the motion in relevant part and dismisses Counts V, VIII,
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`and XI with prejudice.
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`C. Song-Beverly Act Claim (Count II)
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`The SBA provides that “every sale of consumer goods that are sold at retail in [California]
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`shall be accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods
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`are merchantable.” Cal. Civ. Code § 1792. “To state a viable claim under California’s Song-
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`Beverly Consumer Warranty Act, a plaintiff must plead sufficiently a breach of warranty under
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`California law.” Baltazar v. Apple, Inc., 2011 WL 588209, at *3 (N.D. Cal. Feb. 10, 2011);
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`Birdsong v. Apple, Inc., 590 F.3d 955, 958 n.2 (9th Cir. 2009).
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`Generally, the warranty of merchantability ensures that goods are fit “for the ordinary
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`purpose for which goods are used.” Mexia v. Rinker Boat Co., 174 Cal. App. 4th 1297, 1303
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`(2009) (internal quotations omitted). The “mere manifestation of a defect by itself does not
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`constitute a breach [of] the implied warranty of merchantability.” Stearns v. Select Comfort Retail
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`Corp., 2009 WL 1635931, at *8 (N.D. Cal. June 5, 2009). “A plaintiff who claims a breach of the
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`implied warranty of merchantability must show that the product did not possess even the most
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`basic degree of fitness for ordinary use.” Swearingen v. Amazon Pres. Partners, 2014 WL
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`3934000, at *1 (N.D. Cal. Aug. 11, 2014) (citation and quotation marks omitted). Further, a
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`plaintiff alleging a breach of an implied warranty based on a latent defect must show that the
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`defect is “substantially certain to result in malfunction during the useful life of the product.”
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`Daniel v. Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015) (citation and quotation marks
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`omitted). Finally, the duration of the implied warranty of merchantability is either one-year or is
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`coextensive in duration with any express warranty that accompanies the consumer goods. Cal.
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`Civ. Code § 1791.1(c).
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`Plaintiffs Ocampo and Hutchinson used their MacBook Pros far past the express and
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`implied warranty period. See SAC ¶ 119 (limiting the Song Beverly Claim to Plaintiffs Ocampo
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`and Hutchinson); SAC ¶¶ 47, 49, 50 (Plaintiff Ocampo used his MacBook Pro for two years
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`Case No.: 5:20-cv-05857-EJD
`ORDER GRANTING MOTION TO DISMISS
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 10 of 11
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`before experiencing the alleged defect and has continued to use it after repair); SAC ¶¶ 63, 65
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`(Plaintiff Hutchinson used his MacBook Pro for three years before experiencing the alleged
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`defect). Plaintiffs thus cannot demonstrate that their devices were unfit for “even the most basic
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`degree of fitness for ordinary use.” See Swearingen, 2014 WL 3934000, at *1; see also Elias v.
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`Hewlett-Packard Co., 950 F. Supp. 2d 1123, 1130–31 (N.D. Cal. 2013) (dismissing a SBA claim
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`predicated on an alleged breach of the implied warranty of merchantability where a computer
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`performed for seventeen months, well beyond the one-year maximum duration set forth in Cal.
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`Civ. Code § 1791.1(c)).
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`Plaintiffs argue that the Court should dispense with the requirement that they plead that
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`their MacBook Pros were substantially certain to fail because the computers did fail during their
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`alleged useful life. First, this logic would effectively negate durational limits in manufacturer
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`warranties in California law. Second, even if such an exception exists, see Hicks v. Kaufman &
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`Broad Home Corp., 89 Cal. App. 4th 908 (2001), “multiple district courts have concluded” that
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`the exception recognized in Hicks does not apply to “consumer products with limited lifespans
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`such as computers.” Davidson v. Apple, 2017 WL 976048, at *13 n.5 (N.D. Cal. Mar. 15, 2017)
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`(collecting cases). Accordingly, the Court GRANTS the motion in relevant part and dismisses
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`Plaintiffs’ SBA claim with prejudice.
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`D. Magnuson-Moss Warranty Act Claim (Count III)
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`The Court DISMISSES Plaintiffs’ MMWA claim. First, Plaintiffs do not meet the
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`MMWA’s express jurisdictional requirement of one hundred named plaintiffs. 15 U.S.C.
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`§ 2310(d)(3)(C); Goldstein v. Gen. Motors LLC, 445 F. Supp. 3d 1000, 1013 (S.D. Cal. 2020)
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`(dismissing MMWA claim with only twenty-nine named plaintiffs). Second, Plaintiffs’ MMWA
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`claim “stand[s] or fall[s] with [their] express and implied warranty claims under state law.”
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`Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008); Birdsong v. Apple Inc.,
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`590 F.3d 995, 958 n.2 (9th Cir. 2009). Because the Court has determined that Plaintiffs have
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`failed to allege any actionable breach of express or implied warranty, the Court must dismiss
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`Plaintiffs’ MMWA claim.
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`Case No.: 5:20-cv-05857-EJD
`ORDER GRANTING MOTION TO DISMISS
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`Case 5:20-cv-05857-EJD Document 62 Filed 03/14/22 Page 11 of 11
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`IV. CONCLUSION
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`For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss.
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`While leave to amend generally is granted liberally, the Court has discretion to dismiss a
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`claim without leave to amend if amendment would be futile. Manzarek v. St. Paul Fire & Marine
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`Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051
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`(9th Cir. 2008) (“Dismissal without leave to amend is proper if it is clear that the complaint could
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`not be saved by amendment.”).
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`With respect to the fraud claims based on affirmative representations and the implied
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`warranty claims, the Court finds that leave to amend would be futile and prejudicial to Defendant,
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`given that Plaintiffs have amended their complaint two times already and that this case presents
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`nearly identical claims to Taleshpour, in which the Court dismissed fraud claims based on
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`affirmative representations without leave to amend. Leadsinger, Inc. v. BMF Music Publ’g, 512
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`F.3d 522, 532 (9th Cir. 2008) (“The decision of whether to grant leave to amend nevertheless
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`remains within the discretion of the district court, which may deny leave to amend due to ‘undue
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`delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
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`by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
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`of the amendment, [and] futility of amendment.’” (citing Foman v. Davis, 371 U.S. 178, 182
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`(1962))). With respect to the fraud claims based on fraud by omission, the Court grants Plaintiffs
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`leave to amend to plead a safety hazard arising out of the alleged defects. Because Plaintiffs may
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`be able to allege a breach of warranty claim, the Court will also allow them leave to amend their
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`MMWA claim.
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`IT IS SO ORDERED.
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`Dated: March 14, 2022
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`Case No.: 5:20-cv-05857-EJD
`ORDER GRANTING MOTION TO DISMISS
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`EDWARD J. DAVILA
`United States District Judge
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