Kobe Falco v. Nissan North America Inc et al, No. 2:2013cv00686 - Document 166 (C.D. Cal. 2016)
Court Description: ORDER GRANTING PLAINTIFFS MOTION FOR CLASS CERTIFICATION 130 by Judge Dean D. Pregerson . (lc) Modified on 4/5/2016 (lc).
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Kobe Falco v. Nissan North America Inc et al Doc. 166 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 KOBE FALCO, individually, and on behalf of a class similarly situated individuals, 13 Plaintiff, 14 v. 15 16 NISSAN NORTH AMERICA INC., NISSAN MOTOR CO. LTD, a Japanese Company, 17 18 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-00686 DDP (MANx) ORDER GRANTING MOTION FOR CLASS CERTIFICATION [Dkt. Nos. 130, 133] 19 20 Presently before the Court is Plaintiffs’ Motion for Class 21 Certification. 22 parties’ submissions and heard oral argument, the Court adopts the 23 following Order. 24 I. 25 (Dkt. Nos. 130, 133.) Having considered the BACKGROUND This class action alleges consumer defects and 26 misrepresentations based on the timing chain systems in several 27 Nissan vehicles. 28 the case in its prior Orders, particularly the October 10, 2013, The Court has already detailed the basic facts of Dockets.Justia.com 1 Order Denying in Part and Granting in Part Defendants’ Motion to 2 Dismiss. 3 facts here, along with new relevant facts: 4 (Dkt. No. 51.) Thus, the Court repeats the statement of Named Plaintiffs Falco, Seguin, Padilla, and Galvan are 5 purchasers, respectively, of a 2005 Nissan Pathfinder, a 2007 6 Nissan Quest, a 2006 Nissan Pathfinder, and a 2005 Pathfinder. 7 (First Am. Compl.1 (“FAC”), Dk. No. 22, ¶¶ 55, 61, 70, 77.) 8 Plaintiffs allege that their vehicles had a defectively designed 9 Timing Chain Tensioning System (“TCTS”). They bring this putative 10 class action on behalf of themselves and other purchasers or 11 lessees of the vehicles noted above and other vehicle lines that 12 they allege share the defect.2 13 are Nissan North America, Inc. and Nissan Motor Co., Ltd. 14 (respectively, “Nissan USA” and “Nissan Japan”; collectively, 15 “Nissan”). 16 (Id. ¶¶ 2, 5, 28.) The Defendants Plaintiffs allege defective TCTSs are prone to failure before 17 consumers reasonably expect any failure to occur and that the 18 defect presents a safety concern for drivers and occupants of the 19 vehicles. (Id. ¶ 5.) They allege that repair of the faulty TCTSs 20 21 22 23 24 25 26 27 28 1 The Court notes that the operative pleading is now the Second Amended Complaint (“SAC”), Dkt. No. 95. However, the essential facts and theory of the case remain the same in both pleadings. The SAC does have more specific details to support Plaintiffs’ claims because more discovery had been completed. Those facts are also alleged in the Motion for Class Certification and thus included in this Order as well. 2 These lines of vehicles include: 2004-2008 Nissan Maxima vehicles; 2004-2009 Nissan Quest vehicles; 2004-2006 Nissan Altima vehicles (with the VQ35 engine); 2005-2007 Nissan Pathfinder vehicles; 2004-2007 Nissan Xterra vehicles; and 2005-2007 Nissan Frontier vehicles (with the VQ49 engine). FAC § 2. 2 1 has caused them and other class members significant monetary 2 damages. 3 (Id. ¶ 4.) The TCTS is a component of an internal combustion engine. It 4 is responsible for connecting the engine’s camshaft to the 5 crankshaft, which in turn controls the opening and closing of the 6 engine’s valves. 7 occurs in the precise, synchronized manner necessary for the engine 8 to function. 9 can cause a vehicle’s pistons and valves to smash into one another, (Id. ¶ 29.) (Id.) The TCTS ensures that this system According to Plaintiffs, a TCTS malfunction 10 resulting in an inability to accelerate, maintain speed, and idle 11 smoothly, and that malfunction can lead to catastrophic engine 12 failure, posing safety risks. 13 Decl., Exs. 2, 18, 21, 22, 25).) 14 (Id. ¶¶ 31, 33; see also Pifko Plaintiffs allege that after their vehicles’ TCTS broke down, 15 they were confronted with significant repair costs, ranging from 16 $510.60 for Falco to $2,788.00 for Seguin. 17 Plaintiffs allege that they would not have bought the vehicles had 18 they known of the TCTS defect. 19 Nissan USA has been aware of the defect since at least 2004 as a 20 result of information exclusively in its possession, including pre- 21 production testing, pre-production design failure mode and analysis 22 data, production design failure mode and analysis data, early 23 consumer complaints, and aggregate data from retailers. 24 see also Pifko Decl., Exs. 7, 17, 18, 19, 21).) 25 that despite this knowledge, Nissan USA continued to install the 26 defective component while concealing its knowledge so that the 27 warranty period would expire before owners became aware of the 28 problem. (Id. ¶ 12.) (FAC ¶ 8.) 3 (FAC ¶¶ 59, 68.) Plaintiffs allege that (Id. ¶ 37; Plaintiffs allege 1 In support of these contentions, Plaintiffs allege that Nissan 2 USA redesigned one of the defective TCTS components in 2006 and 3 2007, correcting the defect, but without informing consumers. 4 ¶¶ 39-43.) 5 Service Bulletins (“TSBs”) issued by Nissan USA, beginning July 17, 6 2007, instructing technicians to replace TCTS component parts in 7 the case of whining or buzzing noises. 8 Pifko Decl., Ex. 16).) 9 complaints by drivers to the National Highway Traffic Safety (Id. Plaintiffs further point to a series of three Technical (Id. ¶¶ 44-49; see also Additionally, Plaintiffs point to 10 Administration (“NHTSA”), which Plaintiffs allege that Nissan USA 11 monitors regularly, between 2006 and 2010. 12 (Id. ¶¶ 50, 52.) In the case of each Plaintiff, the repairs were undertaken 13 outside of the vehicles’ 5-year, 50,000-mile powertrain warranty. 14 (Id. ¶¶ 57, 58, 65, 74.) 15 “whining,” “buzzing,” and “ticking” during the warranty period, 16 which were symptomatic of the TCTS defect, and that they would have 17 demanded that the Defendants repair the vehicles during the 18 warranty period had they been made aware of the nature and extent 19 of the problem. 20 Plaintiffs allege that they heard Based on the facts described above, Plaintiffs asserted six 21 causes of action against Defendants: (1) violation of California's 22 Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et 23 seq.; (2) violation of California’s Unfair Competition Law (“UCL”), 24 Cal. Bus. & Prof. Code §§ 17200 et seq.; (3) violation of 25 Washington Consumer Protection Act (“CPA”), RCW 19.86 et seq.; (4) 26 breach of implied warranty pursuant to the Song–Beverly Consumer 27 Warranty Act, Cal. Civ. Code § 1792 and 1791.1 et seq.; (5) Fraud; 28 and (6) Unjust Enrichment. 4 1 Now, Plaintiffs have brought a motion to certify three classes 2 under Federal Rule of Civil Procedure 23(b)(3): (1) the “California 3 Statutory Class,” consisting of all California residents who 4 purchased or leased a class vehicle in California and who have 5 incurred actual expenses in connection with either the diagnosis or 6 repair of the defective timing chain system; (2) the “California 7 Fraud and Breach of Warranty Class,” consisting of all California 8 residents who currently own or lease a class vehicle in California 9 and who have not yet had the defective timing chain system fully 10 repaired; and (3) the “Washington Class,” consisting of all 11 Washington residents who purchased or leased a class vehicle in 12 Washington and who have incurred actual expenses in connection with 13 either the diagnosis or repair of the defective timing chain 14 system. 15 (Mot. Certify Class, dkt. no. 134, at 9.) According to Plaintiffs, all class vehicles use a uniform 16 timing chain system — the same slack guide, secondary chain, and 17 secondary tensioners — and they all have the same defect. 18 4-5.) 19 those engines shared an identical timing chain system. 20 (citing Pifko Decl., Exs. 20, 21, 24).) 21 defective slack guide, secondary timing chain, and secondary 22 tensioners for the relevant class years and class vehicle models. 23 (Id. (citing Pifko Decl., Exs. 3, 24).) 24 (Id. at All class vehicles came with either a ZV5 or ZV7 engine, and (Id. at 5 Both engines had the same Plaintiffs argue that any countermeasures Defendants took 25 during the class years were attempts to fix the defect, but the 26 countermeasures failed to fix the defect, which is why Nissan 27 ultimately redesigned the system. 28 maintain that Defendants knew about this defect as early as 2003 (Id. at 6-7.) 5 Plaintiffs 1 based on internal communications. 2 11, 17).) 3 (Id. (citing Pifko Decl., Exs. Defendants oppose certification of all three classes. (Opp’n, 4 dkt. no. 147.) 5 together two separate issues with two different components in two 6 different timing chain systems. (Id. at 1.) 7 Defendants, Plaintiffs misunderstand the evidence because (1) not 8 all class vehicles came with the same primary timing chain slack 9 guide design; (2) not all class vehicles came with the same Defendants argue that Plaintiffs are lumping According to 10 secondary timing chain; (3) even for those class vehicles that came 11 with the same secondary timing chain design, a manufacturing 12 variation caused issues with a small percentage of vehicles. 13 II. 14 (Id.) LEGAL STANDARD The party seeking class certification bears the burden of 15 showing that each of the four requirements of Rule 23(a) and at 16 least one of the requirements of Rule 23(b) are met. 17 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 18 2012); Hanon v. Dataprods. Corp., 976 F.2d 497, 508-09 (9th Cir. 19 1992). 20 conduct a “rigorous analysis” to determine whether the party 21 seeking certification has met the prerequisites of Rule 23 of the 22 Federal Rules of Civil Procedure. 23 Inc., 97 F.3d 1227, 1233 (9th Cir. 1996). 24 four prerequisites for class certification: In determining whether to certify a class, a court must 25 (1) 26 (2) 27 (3) 28 See Meyer v. Valentino v. Carter-Wallace, Rule 23(a) sets forth the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 6 1 (4) the representative parties will fairly and adequately protect the interests of the class. 2 Fed. R. Civ. P. 23(a); see also Hanon, 976 F.2d at 508. These 3 four requirements are often referred to as (1) numerosity, (2) 4 commonality, (3) typicality, and (4) adequacy. See General Tel. 5 Co. v. Falcon, 457 U.S. 147, 156 (1982). 6 In determining the propriety of a class action, the question 7 is not whether the plaintiff has stated a cause of action or will 8 prevail on the merits, but rather whether the requirements of Rule 9 23 are met. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 10 (1974). This Court, therefore, considers the merits of the 11 underlying claim to the extent that the merits overlap with the 12 Rule 23(a) requirements, but will not conduct a “mini-trial” or 13 determine at this stage whether Plaintiffs could actually prevail. 14 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981, 983 n.8 (9th 15 Cir. 2011); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 16 131 S. Ct. 2541, 2551-52 (2011). 17 Rule 23(b) defines different types of classes. Leyva v. 18 Medline Indus. Inc., 716 F.3d 510, 512 (9th Cir. 2012). Relevant 19 here, Rule 23(b)(3) requires that “questions of law or fact common 20 to class members predominate over individual questions . . . and 21 that a class action is superior to other available methods for 22 fairly and efficiently adjudicating the controversy.” 23 Civ. P. 23(b)(3). 24 III. DISCUSSION 25 A. Rule 23(a) Prerequisites 26 27 28 7 Fed. R. 1 To show that class certification is warranted, Plaintiffs 2 must show that all four prerequisites listed in Rule 23(a) are 3 satisfied. 4 5 1. Numerosity Numerosity is satisfied if “the class is so numerous that 6 joinder of all members is impracticable.” 7 23(a)(1). 8 9 Fed. R. Civ. P. Plaintiffs argue that documents obtained through discovery show that thousands of timing chain systems have been repaired on 10 class vehicles. 11 Nissan sold 768,333 class vehicles between December 2004 and 12 September 2010. 13 numerosity requirement satisfied when a class includes forty or 14 more members. 15 (MRWx), 2012 WL 3589795, at *2 (C.D. Cal. Aug. 21, 2012). 16 there are more than forty potential class members, the Court finds 17 this factor satisfied. 18 2. 19 (Mot. at 10-11.) (Id. at 10.) Further, Plaintiffs claim that Courts typically find the Sibert v. TV Magic, Inc., No. CV 12-03404 DDP As Commonality Commonality is satisfied if “there are questions of law or 20 fact common to the class.” 21 this does not mean that all questions of law and fact must be 22 identical across the class; “[t]he requirements of Rule 23(a)(2) 23 have been construed permissively, and all questions of fact and 24 law need not be common to satisfy the rule.” 25 Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (internal 26 quotation marks and brackets omitted). 27 questions of trivial fact is not enough: the “question” must be 28 one that “will generate common answers apt to drive the resolution Fed. R. Civ. P. 23(a)(2). 8 Note that Ellis v. Costco However, posing common 1 of the litigation.” 2 2541, 2551 (2011). 3 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. Plaintiffs assert that there are common questions of law and 4 fact across the classes, namely: “(a) whether the timing chain 5 system in all Class Vehicles was defectively designed; (b) whether 6 Nissan was aware of the defective timing chain system; (c) whether 7 Nissan concealed the uniformly defective timing chain system; and 8 (d) whether Nissan’s deceptive and fraudulent conduct was 9 unlawful.” 10 (Mot. at 11.) Defendants argue that Plaintiffs have “failed to prove that 11 all class members received the same timing chain system parts, 12 much less that all of those parts have a common defect.” 13 at 10-11.) 14 of four slack guides for the primary timing chain: (1) original 15 unmodified; (2) original with barb height change; (3) original 16 with barb height change and new mold process; and (4) new slack 17 guide.” 18 have one of two secondary timing chains: (1) original design or 19 (2) new design”; Defendants also claim that the secondary timing 20 chain suffers from “manufacturing variability.” 21 Defendants argue, there is no single defect, and thus no common 22 issues, citing Johnson v. Harley-Davidson Motor Co. Grp. LLC, 285 23 F.R.D. 573, 579-80 (E.D. Cal. 2012), and In re Ford Motor Co. 24 Ignition Switch Prods. Liability Litigation, 174 F.R.D. 332, 343- 25 44 (D.N.J. Aug. 28, 1997). (Opp’n Defendants claim that a class vehicle “could have one (Id. at 11.) Additionally, the class vehicles “could (Id.) So, 26 Further, Defendants claim that there is no evidence to show 27 Nissan USA or Nissan Japan were aware of timing chain issues “in 28 the same way throughout the class period.” 9 (Opp’n at 11.) 1 “[E]vidence indicates that at the time design responsibility was 2 handed over from Nissan Japan to [Nissan USA] in March 2004 for 3 the 3.5L engine and in July 2004 for the 4.0L engine, Nissan Japan 4 believed that initial quality issues for the slack guide 5 identified by the engine plant had been addressed.” 6 12.) 7 the system after warranty data was analyzed and then it determined 8 design changes were desired. 9 and the supplier to take countermeasures, which Defendants (Id. at 11- According to Defendants, Nissan USA only found issues with (Id. at 11.) This led Nissan USA 10 appeared to believe would be effective. 11 Defendants, there are no common issues underlying all the 12 potential class vehicles as to design, defect, and knowledge. 13 (Id.) Thus, according to Plaintiffs’ Reply argues there is no evidence that points to 14 manufacturing variability rather than a defect — and further, that 15 even accounting for manufacturing variability, there could also be 16 a design problem, and so commonality still exists through the 17 class. 18 284 F.R.D. 530, 33 (C.D. Cal. 2012); Dkt. No. 135, Pifko Decl., 19 Exs. 1, 5, 6, 7, 9, 11, 17, 20, 21; Dkt. No. 153, Reply Pifko 20 Decl., Ex. 12, 36).) 21 engineers support Defendants’ theory that there was merely a 22 production problem because the engineers all point to a design 23 problem. 24 exs. to Dkt. No. 153, Reply Pifko Decl.).) 25 (Reply at 6-9 (citing Keegan v. Am. Honda Motor Co., Inc., Further, Plaintiffs argue that no Nissan (Id. at 8-9 (citing exs. to Dkt. No. 135, Pifko Decl.; The Court finds this case raises similar common questions of 26 fact and law to the common questions alleged in another consumer 27 automobile defect class certification case, Chamberlan v. Ford 28 Motor Co., 402 F.3d 952, 962 (9th Cir. 2005). 10 That case denied an 1 interlocutory appeal of a grant of class certification. 2 Circuit held the lower court’s decision was not manifestly 3 erroneous, particularly as the district court had listed examples 4 of common issues, such as whether there was defect design, whether 5 Ford had knowledge of the defects, and other questions similar to 6 the ones Plaintiffs present here. 7 defect cases, commonality can be found in the very legal and 8 factual question of the defect. 9 Jaguar Land Rover N. Am. LLC, 617 F.3d 1168, 1172 (9th Cir. 2010); 10 Doyle v. Chrysler Grp. LLC, No. SACV 13-00620, 2014 WL 7690155, at 11 *6-7 (C.D. Cal. Oct. 9, 2014); Parkinson v. Hyundai Motor Am., 258 12 F.R.D. 580, 595-96 (C.D. Cal. 2008). 13 alleged across all class vehicles, and the assertion is supported 14 by sufficient evidence at this juncture as shown by the 15 Plaintiffs’ cited exhibits. 16 Plaintiffs have satisfied the commonality requirement. 17 18 3. See id. The Ninth In these consumer See, e.g., id.; see also Wolin v. Here, the same defect is Therefore, the Court finds that Typicality Typicality is satisfied if “the claims or defenses of the 19 representative parties are typical of the claims or defenses of 20 the class.” 21 typicality requirement is to assure that the interest of the named 22 representative aligns with the interests of the class. 23 refers to the nature of the claim or defense of the class 24 representative, and not to the specific facts from which it arose 25 or the relief sought. 26 members have the same or similar injury . . . .” 27 Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal 28 quotation marks omitted) (citations omitted) (emphasis added). Fed. R. Civ. P. 23(a)(3). “The purpose of the Typicality The test of typicality is whether other 11 Hanon v. 1 Plaintiffs argue that the named Plaintiffs’ claims are 2 typical because all claims in the classes arise from Nissan’s 3 concealment of the same defective timing chain system. 4 12.) 5 typicality when the same defect is alleged across a consumer 6 class. 7 SACV 13-00620, 2014 WL 7690155, at *7; In re Toyota Motor Corp. 8 Unintended Acceleration Marketing, Sales Practices, and Prods. 9 Liability Litigation, No. 8:10ML2151 JVS, 2012 WL 7802852, at *2-3 (Mot. at Plaintiffs cite to Wolin for the proposition that there is (Id. (citing Wolin, 617 F.3d at 1175); see also Doyle, No. 10 (C.D. Cal. Dec. 28, 2012). 11 same defective timing chain system was installed in all the class 12 vehicles, it does not matter that the class contains people who 13 own vehicle models that are not identical to the models owned by 14 the named Plaintiffs. 15 Am., LLC, No. C-13-2274 MMC, 2015 WL 82534, at *2 (N.D. Cal. Jan. 16 6, 2015)(pleading stage).) 17 Further, Plaintiffs claim, because the (Mot. at 12 (citing Sharma v. BMW of N. Defendants counter that the overbreadth of the proposed 18 classes is a problem for typicality. 19 Plaintiff is a member of the Washington class as presently defined 20 by Plaintiffs because none are Washington residents. 21 (citing Estate of Felts v. Genworth Life Ins. Co., 250 F.R.D. 513, 22 524 (W.D. Wa. 2008)(“Class membership is a minimal prerequisite to 23 a finding of typicality.”).) 24 the named Plaintiffs leased a vehicle. 25 claim that the vehicles here are not like those in Wolin because 26 the vehicles here do not possess a single common defect that 27 unites the claims of all class members. For instance, no named (Opp’n at 13 Further, Defendants argue, none of 28 12 (Id.) (Id.) Lastly, Defendants Therefore, 1 Defendants claim there is no typicality because the classes could 2 have different part configurations. 3 Plaintiffs concede that the Washington class, as currently 4 defined in the moving papers, does require Washington residence 5 and no named Plaintiff is a current Washington resident. 6 at 16 & n.18.) 7 should be a member of the Washington class because he purchased 8 his vehicle there. 9 at 288).) (Reply However, Plaintiffs argue that Plaintiff Falco (Id. (citing Dkt. No. 135, Pifko Decl., Ex. 30 Because Washington’s Consumer Protection Act (“CPA”) 10 does not have a substantive residency requirement, Plaintiffs 11 argue that Plaintiff Falco would be typical of such a CPA claim. 12 (Id. (citing Wash. Rev. Code § 19.86.010; Pierce v. NovaStar 13 Mortg., Inc., 238 F.R.D. 624, 626 (W.D. Wa. 2006)(providing 14 elements of CPA action).) 15 modify the proposed Washington class definition so that it 16 includes individuals like Falco who bought or leased a class 17 vehicle in Washington but who may not be Washington residents. 18 Therefore, Plaintiffs ask the Court to Plaintiffs further argue that the interests of the class and 19 the named Plaintiffs need not be identical, so it should not 20 defeat class certification that none of the named Plaintiffs 21 leased a vehicle. 22 typicality is the same legal theory, so minor factual differences 23 do not defeat typicality. 24 Because Plaintiffs are not asking for vehicle buybacks, a recall, 25 or other forms of relief perhaps not available to leased vehicles, 26 there are no differences in remedies; Plaintiffs seek “economic 27 compensation for out-of-pocket costs they incurred and/or amount (Id. at 16-17.) All that is needed for (Id. (citing Wolin, 617 F.3d at 1175).) 28 13 1 by which they each overpaid for a vehicle that was less safe than 2 Nissan claimed.” 3 (Id. at 16.) The Court finds that as presently defined, no named Plaintiff 4 is a member of the Washington class. 5 covers “any commerce directly or indirectly affecting the people 6 of the state of Washington.” 7 Courts applying Washington’s CPA have understood this statutory 8 section to provide something akin to a standing requirement: The 9 plaintiff must show some effect on the people of Washington, such Further, the statute only Wash. Rev. Code § 19.86.010(2). 10 that a nonresident plaintiff’s claim under the CPA for a 11 defendant’s actions not taken in Washington is not likely to be 12 covered by the statute’s reach. 13 Ins. Co., No. CV 09-1309-PK, 2010 WL 5621358, at *12-13 (D. Or. 14 Dec. 28, 2010) (citing Schnall v. AT&T Wireless Servs., Inc., 225 15 P.3d 929,939 (Wash. 2010) (en banc), superseded on reconsideration 16 by 259 P.3d 129 (2011) (en banc)). See, e.g., Malmquist v. OMS Nat’l 17 Here, while Falco is not a Washington resident, he did 18 purchase his vehicle in that state when he was a resident of that 19 state. 20 Nissan vehicles in Washington as well, which constitutes commerce 21 directly effecting people of Washington because the sale occurred 22 in the state. 23 for application of Washington’s CPA, it appears that the Court 24 could remove the residency requirement from the class definition 25 and simply require that the class vehicle be leased or purchased 26 in Washington. 27 definition as: All purchasers or lessors of a Class Vehicle who 28 purchased or leased the vehicle in Washington and who have Other Washington residents and nonresidents have purchased Because residency is not a substantial requirement Therefore, the Court will construe the class 14 1 incurred expenses in connection with either the diagnosis or 2 repair of the defective timing chain system. 3 The other two classes meet the typicality requirement; named 4 Plaintiffs are members of the class and have the same interests as 5 other class members, and no particular defenses are alleged 6 against any of them that would detract from the class. 7 that not all class vehicle models or any lessees are represented 8 does not defeat typicality because the legal interests are the 9 same across all potential class members. 10 Therefore, the Court finds this factor satisfied. 11 12 The fact 4. Adequacy Adequacy of representation is satisfied if “the 13 representative parties will fairly and adequately protect the 14 interests of the class.” 15 it is conceptually distinct from commonality and typicality, this 16 prerequisite is primarily concerned with “the competency of class 17 counsel and conflicts of interest.” 18 Falcon, 457 U.S. 147, 158 n.13 (1982). 19 two questions: (1) do the named plaintiffs and their counsel have 20 any conflicts of interest with other class members and (2) will 21 the named plaintiffs and their counsel prosecute the action 22 vigorously on behalf of the class?” 23 Fed. R. Civ. P. 23(a)(4). Inasmuch as Gen. Tel. Co. of Southwest v. Thus, “courts must resolve Ellis, 657 F.3d at 985. Plaintiffs allege that there are no conflicts of interests on 24 behalf of any of the named Plaintiffs or Plaintiffs’ counsel, and 25 that counsel is adequate for this litigation. 26 Defendants’ arguments are limited to those for typicality. 27 at 13.) (Mot. at 13.) (Opp’n The Court finds the adequacy requirement met here because 28 15 1 the named Plaintiffs and their counsel satisfy the Rule’s 2 requirements. 3 B. 4 A class action may be certified under Rule 23(b)(3) if “the Rule 23(b)(3) 5 questions of law or fact common to class members predominate over 6 any questions affecting only individual members, and that a class 7 action is superior to other available methods for fairly and 8 efficiently adjudicating the controversy.” 9 23(b)(3). Fed. R. Civ. P. In making its findings on these two issues, courts may 10 consider “the class members’ interests in individually controlling 11 the prosecution or defense of separate actions,” “the extent and 12 nature of any litigation concerning the controversy already begun 13 by or against class members,” “the desirability or undesirability 14 of concentrating the litigation of the claims in the particular 15 forum,” and “the likely difficulties in managing a class action.” 16 Id. 17 18 1. Predominance “The Rule 23(b)(3) predominance inquiry tests whether 19 proposed classes are sufficiently cohesive to warrant adjudication 20 by representation.” 21 591, 623 (1997). 22 may be satisfied by [a] shared experience, the predominance 23 criterion is far more demanding.” 24 cannot be satisfied if there is a much “greater number” of 25 “significant questions peculiar to the several categories of class 26 members, and to individuals within each category.” 27 However, Rule 23(b)(3) predominance “requires a showing that 28 questions common to the class predominate, not that those Amchem Products, Inc. v. Windsor, 521 U.S. “Even if Rule 23(a)'s commonality requirement 16 Id. at 623-24. Predominance Id. at 624. 1 questions will be answered, on the merits, in favor of the class.” 2 Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 3 1184, 1191 (2013). 4 i. California Statutory Class 5 The California statutory class alleges claims under 6 California’s Consumers Legal Remedies Act (“CLRA”) and Unfair 7 Competition Law (“UCL”). 8 (a) (Mot. at 14, 16.) CLRA Claim 9 For the CLRA claim, Plaintiffs have to show that Defendants 10 had a duty to disclose the alleged defect because Defendants had 11 “exclusive knowledge of material facts.” 12 Inc., 202 Cal. App. 4th 249, 255-56 (2011). 13 does not vitiate this duty if there is an unreasonable safety risk 14 caused by the lack of disclosure. 15 754 F. Supp. 2d 1145, 1191 n.25 (C.D. Cal. 2010). 16 CLRA claims require “each class member to have an actual injury 17 caused by the unlawful practice.” 18 Causation, and an “inference of reliance,” for the class in a CLRA 19 claim “can be shown as to an entire class by proving materiality.” 20 Id. at 530-31. 21 intensive question that asks whether ‘a reasonable man would 22 attach importance to its existence or nonexistence in determining 23 his choice of action in the transaction in question.’” 24 (quoting In re Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145, 25 157 (2010)). 26 Collins v. eMachines, An express warranty See In re Toyota Motor Corp., Additionally, Keegan, 284 F.R.D. at 529. “Whether an omission is material is a fact- Id. Plaintiffs argue that evidence such as internal emails and 27 the TSBs demonstrate that Nissan was aware of the timing chain 28 system defect, which created unreasonable safety risks, and the 17 1 defect equally effects all the class vehicle engines; thus, common 2 issues of fact and law predominate this claim. 3 (citing Dkt. No. 135, Pifko Decl., Exs. 7-10, 16, 17, 21, 25.) 4 Further, Plaintiffs claim that causation and reliance can be 5 proved on a class basis because the standard is an objective one, 6 so the evidence need not be examined on an individual basis. 7 at 15.) 8 9 (Mot. at 14-15 (Id. Defendants argue that there is no common proof of Nissan’s knowledge of the defect because knowledge must be determined on a 10 per-transaction basis. 11 problem exists for class members’ knowledge: the Court would need 12 to know about each sale and lease transaction to determine whether 13 there was a material misrepresentation or omission that is common 14 to the class. 15 NHTSA complaints were freely available on the internet, so there 16 could be individualized knowledge issues for those consumers 17 exposed to such information. 18 (Id.) (Opp’n at 18.) Defendants claim the same Defendants further claim that the TSBs and (Id.) Defendants also argue that, for causation purposes, 19 materiality varies amongst class members and so class 20 certification would be inappropriate. 21 variation among class members is shown by: “(1) the vast majority 22 never experience a timing chain problem; (2) the secondary timing 23 chain issue is largely limited to narrow production bands; (3) 24 when timing chain issues arise they manifest themselves as a noise 25 that consumers may not find troublesome; (4) the reported timing 26 chain issues do not disable the vehicle and provide plenty of 27 warning — by way of the extra noise — that repairs are necessary; 28 (5) the condition usually occurs only after the consumer has 18 (Id. at 20.) This 1 driven the car for tens of thousands of miles; and (6) there is no 2 demonstrated real world safety effect.” 3 argue that Plaintiffs offer “no survey evidence or expert 4 testimony that all consumers would find the timing chain 5 material.” 6 (Id.) Lastly, Defendants (Id.) In reply, Plaintiffs argue that materiality can be proved on 7 a class basis. 8 vehicles suffer from the same defect; the defect existed at the 9 time of sale, as did the risks that the defect entailed; there was (Reply at 21- 24.) They claim that the class 10 a risk of catastrophic engine failure; the vehicles are less safe 11 and put consumers in a greater risk of harm than they would be 12 without the defect; and even if the safety risk is just engine 13 noise, the engine noise is a safety concern according to Nissan’s 14 own engineers. 15 (Id. at 22-23.) The Court holds that common issues predominate for the CLRA 16 claims. 17 CLRA claim, such as whether Nissan had a duty to disclose the 18 alleged defect, whether there was an unreasonable safety risk, and 19 whether consumers would find such omission material in their 20 transaction. 21 knowledge and subsequent actions, go to the merits of the claim, 22 but common evidence will be used to prove the claim either way. 23 Further, the evidence cited by Plaintiffs in their moving papers 24 is sufficient at this stage of the case to make out allegations 25 common among the class as to the alleged vehicle defects, the 26 effects the alleged defects could have on the vehicle in terms of 27 safety, and Nissan’s knowledge of the defect. 28 issues predominate. Common proof can be used to establish the elements of the The actual proof of common defect, or Defendants’ 19 Therefore, common 1 (b) 2 UCL Claim There are three potential bases for UCL claims because the 3 statute “penalizes behavior that is ‘unlawful,’ ‘unfair,’ or 4 ‘fraudulent.’” 5 Comm’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 178-81 6 (1999)). 7 underlying violation of another law. 8 prong, individual proof is not necessary to show deception, 9 reliance, and injury because unlike common law fraud, the focus in Keegan, 284 F.R.D. at 533 (quoting Cel-Tech For the unlawful prong, plaintiffs must show an Id. For the fraudulent 10 the UCL claim is on the defendant’s conduct, not the consumer’s 11 reaction. 12 of the UCL can be proved with common evidence regarding the nature 13 of the design defect in question, the likely effect of the defect 14 on class vehicles, its likely impact on vehicle safety, what [a 15 defendant] knew or did not know, and what it disclosed or did not 16 disclose to consumers.” 17 is shown by a violation of “established public policy or if it is 18 immoral, unethical, oppressive or unscrupulous and causes injury 19 to consumers which outweighs its benefits.” 20 Inc., 142 Cal. App. 4th 1457, 1473 (2006). 21 Id. In Keegan, the court explained that “a violation Id. at 534. Lastly, the unfairness prong McKell v. Wash. Mut., Plaintiffs argue all three prongs of the UCL are met here. 22 Plaintiffs first predicate the unlawful prong of their UCL claim 23 on Nissan’s violation of the CLRA, described above, and Nissan’s 24 Song-Beverly Warranty Act violations, described below. 25 16.) 26 fraud claims described below. 27 unfair prong would be proved by common evidence that would answer 28 “(a) when Nissan first became aware of the timing chain system (Mot. at Plaintiffs base the fraudulent prong on their common law (Id.) 20 Plaintiffs claim that the 1 Defect; (b) whether Nissan deliberately chose to withhold 2 information about the timing chain system Defect; (c) why Nissan 3 made the choice to deceive its consumers; (d) the impact that 4 Nissan’s deceptive and fraudulent conduct had on consumers; (e) 5 whether Nissan’s concealment created a safety risk for consumers; 6 and (f) whether Nissan’s concealment violated any ‘legislatively’ 7 declared policies.” (Id.) 8 Plaintiffs explain that this will all be proved by common 9 evidence because the “defective timing chain system is uniform 10 across all class vehicles” and all the evidence surrounding the 11 defect will thus relate to all members of the class. 12 17.) 13 and injury for causation purposes with common evidence that (1) 14 Nissan knew of the defect; (2) Nissan did not disclose the defect 15 in order to save money; and (3) Nissan concealed the defect to 16 shift repair costs to vehicle owners or lessees after the end of 17 the warranty period, as well as to encourage purchase of the class 18 vehicles in the first place. 19 (Id. at 16- As with the CLRA, Plaintiffs claim they will show reliance (Id. at 17.) Defendants present the same arguments for the UCL claim as 20 for the CLRA claim. 21 “[i]ndividual determinations would be needed to assess whether 22 class members are entitled to restitution” because restitution 23 requires an examination of what the Plaintiffs paid and the value 24 of Plaintiffs received. 25 For the UCL claim, Defendants note that (Opp’n at 19.) Plaintiffs reply that the UCL claim does not require 26 individual determinations of deception, reliance, and injury for 27 restitution; instead, they must show that members of the public 28 are likely to be deceived by the defendant. 21 (Reply at 22 (citing 1 In re Tobacco II Cases, 46 Cal. 4th 326, 312, 326 (2009)).) 2 Further, Plaintiffs argue they are not seeking a full refund of 3 the purchase price as restitution, so there are no individualized 4 damages issues. 5 (Id.) The Court holds that, as with the CLRA claim, Plaintiffs can 6 use common proof for their UCL claim. 7 on an underlying CLRA violation for their UCL claim, which alone 8 is sufficient to allow this claim to go forward. 9 Plaintiffs will use common evidence to make their fraud claim, as First, Plaintiffs can rely Second, 10 described below. 11 that common proof would be used for the unfair prong of the UCL. 12 Defendants’ restitution argument will be addressed below. 13 Lastly, Plaintiffs have sufficiently alleged ii. 14 California Fraud and Breach of Warranty Class This class also alleges two different causes of action: 15 common law fraud and breach of the implied warranty of 16 merchantability under the Song-Beverly Warranty Act. 17 (a) 18 Breach of Warranty The Song-Beverly Warranty Act’s implied warranty of 19 merchantability requires that the consumer goods “(1) Pass without 20 objection in the trade under the contract description. (2) Are fit 21 for the ordinary purposes for which such goods are used. (3) Are 22 adequately contained, packaged, and labeled. (4) Conform to the 23 promises or affirmations of fact made on the container or label.” 24 Cal. Civ. Code § 1791.1(a)(1)-(4). 25 whether the vehicle is fit for driving.” 26 537. 27 a latent defect undiscoverable at the time of sale.” For vehicles, the question “is Keegan, 284 F.R.D. at “The implied warranty of merchantability may be breached by 28 22 Mexia v. 1 Rinker Boat Co., 174 Cal. App. 4th 1297, 1304-5 (2009)(collecting 2 cases). 3 Plaintiffs argue here that the class vehicles were sold with 4 same latent defect, and thus the same likelihood of experiencing a 5 timing system malfunction and safety risks. 6 “Again, the evidence that demonstrates this is applicable across 7 the board because Nissan itself addressed the timing chain system 8 Defect as a single problem common to all Class Vehicles.” 9 18). 10 (Mot. at 17-18.) (Id. at Defendants argue that “a mere theoretical defect that does 11 not result in any malfunction does not state a merchantability 12 claim.” 13 C 09-3660 SBA, 2013 WL 3157918, at (N.D. Cal. June 20, 2013).) 14 According to Defendants, the evidence shows that “only a small 15 percentage of vehicles ever displayed a timing chain problem,” 16 thus demonstrating that “manifestation on a classwide basis” 17 cannot be established. (Id. (citing Padmanaban Dec. ¶¶ 7.1-7.4; 18 App’x 1-4).) 19 system’s problems do not make the vehicles unsafe; rather, when 20 the problem manifests, it is merely as engine noise. 21 Defendants point out that the named Plaintiffs responded 22 differently to the engine noise, and none had serious safety 23 issues. 24 class member was injured would be an individual determination, as 25 would the timeliness of the claims brought; Defendants claim that 26 the implied warranty of merchantability is limited to the duration 27 of the express warranty. (Opp’n at 15 (citing Taragan v. Nissan N. Am., Inc., No. Further, Defendants argue that the timing chain (Id. at 16.) (Id.) Lastly, Defendants claim that whether a (Id. at 17-18.) 28 23 1 Plaintiffs respond that there is the same defect for all the 2 alleged class vehicles when they left Nissan’s factory, and this 3 common defect — not the further manifestation of engine failure — 4 is sufficient for showing common questions of fact and law 5 predominate. 6 was a latent defect, Plaintiffs argue, that made the engine 7 “susceptible to premature wear.” 8 issue, Plaintiffs point to California and Ninth Circuit precedent 9 holding that the implied warranty can extend longer than an (Reply at 17-18.) The timing chain system problem (Id. at 17.) For the timeliness 10 express warranty for latent defects that otherwise would not 11 appear in the express warranty time period. 12 Daniel v. Ford Motor Co., 806 F.3d 1217, 1222-23 (9th Cir. 2015); 13 Mexia, 174 Cal. App. 4th at 1305-06).) 14 (Id. at 17-19 (citing The Court finds that the breach of the implied warranty of 15 merchantability claim is predominated by common questions of fact 16 and law. 17 the defect was a “merits inquiry” that was “particularly suited to 18 resolution as a class action.” 19 can show that the allegedly defective design is not “substantially 20 certain” to result in the manifestation of “premature wear” on the 21 engine, as Plaintiffs claim it will, then Defendants will prevail 22 in this cause of action as against the class. 23 question would be answered either way in a manner common to the 24 class, the Court holds this question suitable for class 25 certification. 26 27 28 The court in Keegan illustrated how the manifestation of (b) 284 F.R.D. at 537. If Defendants Since this merits Fraud Common law fraud in California requires Plaintiffs to show: “a false representation, knowledge of its falsity, intent to 24 1 defraud, justifiable reliance, and damages.” 2 Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003)(internal quotation 3 omitted). 4 Vess v. Ciba-Geigy Plaintiffs claim common evidence will show classwide fraud. 5 (Mot. at 18-19.) 6 correct the defective timing chain system and, instead, knowingly 7 sold Class Vehicles containing the defective system to the public 8 is applicable classwide.” 9 that there is a presumption of reliance here because the claim is “Evidence showing that Nissan refused to timely (Id. at 18.) Further, Plaintiffs argue 10 based on a material fraudulent omission by Nissan. 11 (citing Plascencia v. Lending 1st Mortg., 259 F.R.D. 437, 447 12 (N.D. Cal. 2009).) 13 evidence to show: “(a) Nissan was aware that the timing chain 14 system was defective and dangerous; (b) Nissan deliberately 15 withheld such information; and, if so, whether (c) a reasonable 16 person would find such information important in deciding whether 17 to purchase a Class Vehicle.” (Id. at 19 Plaintiffs claim that they will use common (Id.) 18 Defendants address the common law fraud claim with the same 19 arguments as were brought against the California statutory class 20 discussed above. 21 “[a] common law fraud claimant must establish actual reliance upon 22 the alleged representation or omission” and that there is no 23 presumption of reliance applicable here because such a presumption 24 is limited to certain claims, such as securities fraud. 25 18-19 (citing Desai v. Deutsche Bank Secs. Ltd., 573 F.3d 931, 26 941-42 (9th Cir. 2009); Mirkin v. Wasserman, 5 Cal. 4th 1082, 1093 27 (1993).) Particular to this claim, Defendants argue that 28 25 (Opp’n at 1 The Court holds the common law fraud class is appropriate to 2 determine on a classwide basis. The California Supreme Court in 3 Mirkin noted that there are instances of consumer class actions 4 where the Court found the presumption appropriate because “[t]he 5 plaintiffs in each case specifically pled that the defendants had 6 made identical representations to each class member.” 7 Cal. 4th at 1094. 8 besides securities cases where the presumption applied. 9 Reply at 20.) Mirkin, 5 Further, Plaintiffs have cited other cases (See Thus, Plaintiffs can overcome the causation and 10 reliance common proof hurdle. 11 common proof for Defendants’ knowledge and concealment of the 12 defect, and that such a defect was material to the class members, 13 apply with equal force here as for their other causes of action, 14 making this cause of action appropriate for class certification. 15 Plaintiffs’ other arguments of iii. Washington Class 16 The Washington Consumer Protection Act (“CPA”) class must 17 show “(1) an unfair or deceptive act or practice; (2) occurring in 18 trade or commerce; (3) that impacts the public interest; (4) and 19 causes injury to the plaintiff in his or her business or property; 20 and (5) such injury is causally linked to the unfair or deceptive 21 act.” 22 Wash. 2006). Courts have held that causation and reliance can be 23 presumed in cases where there is an allegation that the defendant 24 made a material omission. 25 Adventist Christian Sch. v. Carrier Corp., 242 F.R.D. 568, 573 26 (W.D. Wash. 2007). 27 28 Pierce v. NovaStar Mortg., Inc., 238 F.R.D. 624, 626 (W.D. Id. at 629-30; see also Grays Harbor Plaintiffs argue here, just as they did with the California classes, that all evidence will be common regarding whether Nissan 26 1 withheld the defect from the public. 2 claim that there will also be common proof of injury because the 3 defect is common across all class vehicles. 4 Plaintiffs rely on the presumption of reliance for common proof of 5 causation. 6 (Mot. at 20-21.) (Id.) Plaintiffs Lastly, (Id.) Defendants’ Opposition does not provide any argument that the 7 Washington class fails the predominance test; however, it does 8 note that the CPA requires proof of causation. (Opp’n at 19.) 9 The Court finds that there are common issues of fact and law 10 present for the Washington class, particularly as Defendants have 11 failed to provide any argument to counter Plaintiff’s arguments 12 and alleged evidence of common defects. 13 California classes, there is common evidence of defect, knowledge, 14 and materiality of Defendants’ omission cited by Plaintiffs in the 15 Pifko declaration. 16 the identical material omission is sufficient basis of common 17 proof for reliance and causation. 18 issues among the class. 19 20 iv. Just as with the Further, the presumption of reliance based on Therefore, there are common Classwide Damages In Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013), 21 the Supreme Court clarified the standard for establishing 22 classwide damages. 23 requires that “plaintiffs must be able to show that their damages 24 stemmed from the defendant’s actions that created the legal 25 liability.” 26 Cir. 2013). 27 28 The Ninth Circuit has explained that Comcast Leyva v. Medline Indus., Inc., 716 F.3d 510, 514 (9th Plaintiffs first argue that “[t]he fact that some Class Vehicles have not yet experienced problems associated with the 27 1 defective timing chain system is, on its own, insufficient to 2 defeat commonality or predominance,” citing Wolin, 617 F.3d at 3 1773, and Keegan, 284 F.R.D. at 524, as drawing a distinction 4 between “the nature of the defect and [the defect’s] 5 consequences.” 6 manifestation of the alleged defect would be relevant to the 7 extent of potential damages after trial. 8 9 (Mot. at 21-22.) Plaintiffs acknowledge that (Id. at 22-23.) Plaintiffs also argue that they allege two damages models that comply with the Supreme Court’s requirements in Comcast. 10 (Id. at 23.) 11 the Washington class are entitled to restitution for amounts spent 12 to diagnose and repair the defective timing chain systems. 13 Plaintiffs argue this model complies with Comcast because “it is 14 consistent with Plaintiffs’ theory and calculating the amount of 15 money expended in connection with the diagnosis and/or repair of 16 the defective timing chain system can be accomplished by applying 17 economic principles to common, classwide evidence.” 18 (citing Pifko Decl., Ex. 26 at 232-7).) 19 Plaintiffs claim the California Statutory class and (Id.) (Id. at 23-24 Plaintiffs argue that the California Fraud and Breach of 20 Warranty class is entitled to “benefit of the bargain damages.” 21 (Id. at 24.) 22 behavior induced them to purchase Class Vehicles that did not 23 comport with their safety expectations, and had Nissan disclosed 24 the existence of the defective timing chain system or the high 25 costs of repair, they would have paid less.” 26 members “who have not yet paid to repair the timing chain defect 27 will receive the benefit of the bargain if the defective timing 28 chain system is repaired.” Plaintiffs’ theory is that “Nissan’s fraudulent (Id. at 24-25.) 28 (Id.) The class Thus, Plaintiffs 1 claim, “under the benefit of the bargain or cost of repair model, 2 damages consist of the average amount each member can expect to 3 pay to have the defective timing chain system repaired at an 4 authorized Nissan dealership.” 5 at 232-7).) 6 (Id. (citing Pifko Decl., Ex. 26 Defendants argue that the California Statutory and Washington 7 classes’ proposed damages — the costs of diagnosis and repair of 8 the defect — are rife with individual issues. 9 Defendants also object to the proposed damages for the California (Opp’n at 21-22.) 10 Fraud and Breach of Warranty class, claiming that Plaintiffs’ 11 expert made a flawed model by “applying some sort of average 12 repair costs” as the measure of damages. 13 “benefit of the bargain” is the wrong measure of damages because 14 class members never bargained for a vehicle free of all defects, 15 Defendants argue, and the end of the express warranty period 16 shifts the risk of repairs from Defendants to consumers. 17 22-23.) (Id. at 22.) This (Id. at 18 Further, Defendants argue that restitution is not the same as 19 the costs of actual or average repairs; instead, it is measured by 20 the difference between the amount paid and the value received. 21 (Id. at 23.) 22 individual scenarios for this damages measure caused by different 23 prices paid, different levels of value received, and different 24 repair costs, there is no single formula that could be applied to 25 the classes. (Id.) 26 Because class members have a wide variety of Plaintiffs maintain that the presence of individualized 27 damages alone does not defeat class certification. 28 (citing Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 29 (Reply at 24 1 987 (9th Cir. 2015).) Plaintiffs explain that their damages 2 expert, after further discovery, can perform a classwide remedies 3 analysis for the right part numbers3 in order to show average 4 repair costs. 5 26).) 6 the bargain” damages is appropriate because “[m]embers of this 7 Class bargained for vehicles that were safer than they were at the 8 time of sale, and overpaid by the amount of money necessary to 9 make the vehicles conform (i.e., the cost of repairs).” (Id. & n.26 (citing Dkt. No. 135, Pifko Decl., Ex. Plaintiffs further argue that their measure of “benefit of (Id. at 10 25.) 11 plaintiffs are ‘deceived by misrepresentations into making a 12 purchase,’ restitution is based on ‘what a purchaser would have 13 paid at the time of purchase had the purchaser received all the 14 information.’” (Id. (quoting Pulaski, 802 F.3d at 988-89).) 15 Lastly, Plaintiffs rely on Pulaski to show that “[w]here Here, the Court finds that Plaintiffs have sufficiently 16 alleged common damages formulas for the three classes. 17 vehicles are alleged to have a common defect that the California 18 Statutory and Washington classes all had repaired, thus spending 19 money that they would not have needed to spend had Nissan either 20 disclosed the defect or repaired itself. 21 average cost of repair would provide restitution to these class 22 members because they have already spent that money to repair or 23 diagnose their vehicles. 24 Fraud and Breach of Warranty classes. The class Thus, return of the The same is true for the California By receiving restitution in 25 26 27 28 3 Plaintiffs acknowledge Defendants’ objection that Plaintiffs’ expert included the wrong vehicle parts in her analysis, but argue that “Thompson is able to perform a classwide remedies analysis once the proper experts and/or trier of facts provides her with the pertinent part numbers.” (Reply at 24 n.26.) 30 1 the amount of average repairs, the class would be getting the 2 benefit of their bargain because they would be put in the same 3 position they would have been had the car not been sold with the 4 defective timing chain system — it is the cost necessary to make 5 the vehicles conform to the value Plaintiffs thought they were 6 getting in the price tendered. 7 8 9 2. Superiority Rule 23(b)(3) also requires a class action to be “superior to other available methods for fairly and efficiently adjudicating 10 the controversy.” 11 provides four factors the Court must consider in Rule 23(b)(3)(A) 12 through (D): 13 (A) 14 (B) 15 16 (C) 17 (D) Fed. R. Civ. P. 23(b)(3). The Rule further the class members’ interests in individually controlling the prosecution or defense of separate actions; the extent and nature of any litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action. 18 19 Plaintiffs primarily argue that “recovery on an individual 20 basis would be dwarfed by the cost of litigating on an individual 21 basis.” 22 (Mot. at 25.) Defendants argue that Plaintiffs do not “seriously consider” 23 the four factors from the Federal Rules of Civil Procedure. 24 (Opp’n at 24.) 25 problems for the class suit are “overwhelming.” 26 give a host of questions Defendants claim are individual and 27 require specific, individual facts to answer. 28 Defendants argue they may assert individual defenses, although Particularly, Defendants argue that the practical 31 (Id.) (Id.) Defendants Also, 1 they do not provide an example of any. 2 claim that small damages are insufficient to make a class action 3 appropriate, particularly because individual actions are a viable 4 alternative here. 5 example, CLRA cases are litigated on an individual basis 6 regularly, and attorneys’ fees are available in those actions. 7 (Id.) 8 9 (Id. at 25.) (Id.) Lastly, Defendants Defendants claim that, for Plaintiffs maintain that the factors in the Rule are all met and the class action is the superior litigation choice based on 10 the size of the class and the potentially small individual 11 damages. 12 expect Class Members who cannot afford to repair the timing chain 13 system defect can undertake the burden of pursuing . . . the 14 matter in smalls claims court” in courts of general jurisdiction 15 without fee-shifting. 16 “Nissan’s litany of questions that make the case individual are 17 assuming false facts.” 18 “[a]ll Class Vehicles exhibited the same timing chain system 19 defect that created the same risks of catastrophic engine failure 20 and bodily harm” and that “Nissan knew of the defect throughout 21 the Class Period, but consistently failed to divulge this 22 information.” 23 (Reply at 25.) Plaintiffs argue “it is unreasonable to (Id.) (Id.) Further, Plaintiffs claim that Namely, Plaintiffs maintain that (Id.) The Court finds that the class action is a superior 24 litigation vehicle for this case. 25 interest in prosecuting the case, particularly because it involves 26 vehicle safety, but there is little incentive to do so 27 individually with small potential damages available. 28 prosecuting this case as a class would provide notice to other 32 The class members have an And 1 class members regarding potentially needed repairs and safety 2 concerns. 3 litigation by or against the class members. 4 claims in one forum is desirable because it resolves common legal 5 and factual issues, thus reducing inefficiencies in the use of 6 judicial resources. 7 defect class action cases are brought fairly regularly, and there 8 are no particular difficulties in managing such class actions when 9 appropriate. Further, there is no evidence of pre-existing Concentrating the Lastly, these kinds of vehicle consumer Therefore, the Court holds this requirement is met. 10 C. Ascertainability 11 Although not strictly a part of the requirements of Rule 23, 12 courts have held that a threshold requirement for class 13 certification is that the class, as defined, “must be adequately 14 defined and clearly ascertainable before a class action may 15 proceed.” 16 2011) (quoting Schwartz v. Upper Deck Co., 183 F.R.D. 672, 679–80 17 (S.D. Cal. 1999)). 18 objective and presently ascertainable” such that “it is 19 administratively feasible to determine whether a particular person 20 is a class member.” 21 Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal. The class definition should be “precise, Id. (quotation marks and citations omitted). However, the Manual for Complex Litigation indicates that the 22 concerns that motivate the ascertainability inquiry are less 23 pressing in an action under Rule 23(b)(1) or 23(b)(2) as compared 24 to a Rule 23(b)(3) action: “[b]ecause individual class members 25 must receive the best notice practicable and have an opportunity 26 to opt out, and because individual damage claims are likely, Rule 27 23(b)(3) actions require a class definition that will permit 28 identification of individual class members, while Rule 23(b)(1) or 33 1 (b)(2) actions may not.” 2 Complex Litigation, Fourth, § 21.222 (2004). 3 Federal Judicial Center, Manual for This action is brought under Rule 23(b)(3); therefore, 4 Plaintiffs must show how individual class members will be 5 identifiable. 6 ascertainable through ownership and lease records from Nissan, 7 dealerships, and the Department of Motor Vehicles. 8 Further, Plaintiffs claim that class members will be identifiable 9 through records concerning diagnosis and repair of the defective 10 11 Plaintiffs here claim that class members are timing chain system. (Mot. at 10.) (Id.) Defendants claim that there is a problem with 12 ascertainability because class membership depends on whether an 13 owner or lessee of a class vehicle paid for repairs and 14 diagnostics and there is no administratively feasible way to 15 identify those persons. 16 Defendants claim, because “repairs may, and frequently do, occur 17 after the vehicle’s written warranty has expired,” and Nissan 18 would not have records for such post-warranty repairs because they 19 could take place in any repair shop. 20 Defendants argue that causation is also a problem for 21 ascertainability because a repair must be made as a result of the 22 alleged defect, so the Court would have to determine cause in fact 23 for each class member. 24 (Opp’n at 9.) This is complicated, (Id.) Additionally, (Id.) Plaintiffs respond that identification of the California 25 statutory and Washington classes is feasible through class 26 members’ “own records concerning the diagnosis or repair of the 27 defective chain system.” 28 “[c]ommon experience and logic demonstrate that individuals are (Reply at 13.) 34 Plaintiffs claim that 1 typically meticulous about keeping records of the repairs made to 2 their cars.” 3 of Motor Vehicle records, rather than repair records, can suffice 4 for the California fraud and breach of warranty class. 5 (Id.) In addition, Plaintiffs claim that Department (Id.) In Keegan, a class of “all purchasers or lessees” of two 6 Honda models was ascertainable because “the definitions rely on 7 objective criteria that are verifiable through documentation of a 8 purchase or lease of a class vehicle.” 284 F.R.D. at 521-22. 9 Here, the Court finds that the presence of repair and 10 ownership or lease records is strong basis for determining 11 membership in all three classes. 12 Nissan’s alleged omission can also be shown on a classwide basis. 13 A reasonable consumer would consider the presence of a defect in 14 the timing chain system an important consideration in deciding 15 whether to buy or lease a vehicle because of the safety concerns 16 and also potential repair costs — particularly as the repairs 17 would likely arise after the warranty period ended. 18 the Court finds ascertainability met for all three classes. 19 IV. 20 21 Further, the materiality of Therefore, CONCLUSION For all the above reasons, the Court GRANTS Plaintiffs’ Motion for Class Certification. 22 23 IT IS SO ORDERED. 24 25 Dated: April 5, 2016 DEAN D. PREGERSON United States District Judge 26 27 28 35
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