Myers v. BMW of North America, LLC et al, No. 3:2016cv00412 - Document 35 (N.D. Cal. 2016)

Court Description: ORDER GRANTING 21 MOTION TO DISMISS by Hon. William H. Orrick. Meyers will have 20 days to file an amended complaint. (jmdS, COURT STAFF) (Filed on 10/11/2016)
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Myers v. BMW of North America, LLC et al Doc. 35 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KIEVA MYERS, 7 Plaintiff, 8 v. 9 BMW OF NORTH AMERICA, LLC, 10 Defendant. United States District Court Northern District of California 11 12 Case No. 16-cv-00412-WHO ORDER GRANTING MOTION TO DISMISS Dkt. No. 21 INTRODUCTION Plaintiff Kieva Meyers brings a putative class action against BMW of North America, 13 14 LLC1 (“BMW”) alleging that the comfort access system of certain BMW X5 models is defective 15 because it can cause the vehicles to spontaneously lock when the key remote is inside the vehicle. 16 Meyers asserts that this is contrary to BMW’s representations in its owners’ manual that “To lock 17 the vehicle, the remote control must be located outside of the vehicle.” Based on this alleged 18 defect and representation Meyers alleges four causes of action: (1) violations of California 19 Business and Professions Code § 17200 (“UCL”), (2) Fraud by Omission, (3) Breach of Implied 20 Warranty, and (4) violations of the Consumer Legal Remedies Act (“CLRA”). BMW moves to 21 dismiss Meyers’s claims on numerous bases including that Meyers (1) failed to allege her 22 consumer protection and fraud claims with particularity, (2) has not pleaded reliance or actionable 23 misrepresentation, (3) has not adequately alleged fraud by omission because BMW provided 24 adequate warnings, (4) has not adequately alleged fraud by omission because she has not 25 demonstrated that BMW had a duty to disclose, (5) has not alleged privity with BMW on her 26 implied warranty claim, (6) and has not pleaded facts showing that her vehicle was 27 28 1 Meyers originally brought individual and class claims against Bayerische Motoren Werke Aktiengesellschaft as well, but voluntarily dismissed these claims on August 5, 2016. Dkt. No. 28 Dockets.Justia.com 1 unmerchantable. I heard oral argument on September 21, 2016. I GRANT BMW’s motion to 2 dismiss because Meyers has failed to allege reliance on her CLRA and UCL claims, has failed to 3 allege active concealment on her common law fraud claim, and has failed to allege privity on her 4 implied warranty claim. Meyers will have 20 days leave to amend her complaint. 5 6 BACKGROUND Meyers purchased a 2013 BMW X5 in San Francisco for personal and family use. First 7 Amended Complaint (“FAC”) ¶ 2. Her car was equipped with the comfort access system, a 8 convenience feature that works as follows: “The vehicle can be accessed without activating the 9 remote control. All you need to do is to have the remote control with you, e.g., in your jacket pocket. The vehicle automatically detects the remote control when it is nearby or in the passenger 11 United States District Court Northern District of California 10 compartment. Comfort access supports the following functions: Unlocking/locking of the 12 vehicle.” Id. ¶ 12 (quoting the BMW owners’ manual). The owners’ manual for her car provides 13 instructions for operating the comfort access system and instructs: “Functional requirement: To 14 lock the vehicle, the remote control must be located outside of the vehicle.” Id. Meyers alleges 15 that the comfort access system is defective because “sometimes while the remote control is located 16 inside a Class Vehicle, the Class Vehicle spontaneously locks.” Id. ¶ 13. 17 On October 19, 2015, Meyers experienced this alleged defect. Id. ¶ 16. She opened the 18 rear door of her vehicle, placed her child inside, placed the remote inside the vehicle, shut the rear 19 door, and walked around to the driver’s door. Id. When she attempted to open the driver’s door, 20 the door was locked. Id. Because her child was too young to open the vehicle from inside, 21 Meyers was forced to break a window to open the vehicle. Id. After this lockout, she lodged a 22 complaint with BMW. Id. ¶ 19. Jay Hanson of BMW wrote an email to her explaining that “we 23 must be dealing either with a malfunction of the locking system or an inadvertent activation of the 24 locking system via either the remote transmitter or the Comfort Access System. Again, it is not 25 impossible to lock a key in the vehicle – and to do so is not necessarily indicative of a 26 malfunction. For example, if a door other than the driver’s door is open and the locking button on 27 the transmitter is pressed, the vehicle will lock when the open door is closed. If the user is 28 unaware of having pressed the locking button, then it would certainly appear that it had somehow 2 1 2 locked itself.” Id. Meyers alleges that BMW knew of the comfort access defect in 2007 because an internal 3 training document, entitled “Comfort Access vs-42 je 66 04 04 (093)” acknowledges that a “Class 4 Vehicle’s doors can lock while the Class Vehicle’s key is inside the Class Vehicle.” Id. ¶ 15. She 5 states that numerous owners of BMW X5 vehicles have reported that their vehicles have 6 automatically locked while the remote control has been inside of their vehicles. Id. ¶ 13. She 7 pleads that, despite BMW’s knowledge and awareness of the comfort access defect, it failed to 8 make repairs to resolve the defect, failed to modify owners’ manuals so that they are accurate, and 9 failed to pay for damages suffered by consumers as a result of the comfort access defect. Id. ¶ 21. She contends that BMW knew the Class Vehicles were defective and not fit for their intended 11 United States District Court Northern District of California 10 purpose and concealed and failed to disclose the defect to her and the class members at the time of 12 purchase or thereafter. Id. ¶ 25. 13 Meyers alleges that BMW widely advertises that its “Class Vehicles are extremely safe 14 vehicles, and are in fact, ‘The Ultimate Driving Machine.’ ” Id. ¶ 20. However, because of the 15 comfort access defect, the cars are not safe. Id. 16 Meyers bring claims alleging (1) violations of the California Unfair Competition Law 17 (“UCL”), (2) Fraud by Omission, (3) Breach of Implied Warranty, and (4) violations of the 18 CLRA. BMW moves to dismiss all of Meyers’s claims under Federal Rule of Civil Procedure 19 12(b)(6) asserting that Meyers has failed to state a viable claim. It contends that there is no defect 20 with the comfort access system, that it has never represented that it is impossible for drivers to 21 lock themselves out of a BMW X5 vehicle, that it has instead affirmatively warned drivers of the 22 possibility of lockouts or a malfunction of the comfort access system, and that Meyers’s subjective 23 misreading of the BMW owner’s manual is insufficient to support her claims. BMW argues that 24 dismissal is appropriate because Meyers has (1) failed to plead her fraud claims with particularity 25 or adequately alleged a defect, (2) has not established that BMW had a duty to disclose, (3) is not 26 in privity with BMW, necessary for her implied warranty claim, and (4) has not alleged that the 27 vehicles were unmerchantable. I heard argument on BMW’s motion on September 21, 2016. 28 LEGAL STANDARD 3 1 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 2 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 3 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 4 face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible 5 when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the 6 defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (citation omitted). There must be “more than a sheer possibility that a defendant has acted 8 unlawfully.” Id. While courts do not require “heightened fact pleading of specifics,” a plaintiff 9 must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, 10 550 U.S. at 555, 570. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the United States District Court Northern District of California 11 12 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 13 plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court 14 is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 15 fact, or unreasonable inferences.” See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 16 2008). 17 Federal Rule of Civil Procedure 9(b) imposes a heightened pleading standard where a 18 complaint alleges fraud or mistake. Under FRCP 9(b), to state a claim for fraud, a party must 19 plead with “particularity the circumstances constituting the fraud,” and the allegations must “be 20 specific enough to give defendants notice of the particular misconduct . . . so that they can defend 21 against the charge and not just deny that they have done anything wrong.” See Kearns v. Ford 22 Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009) (citation omitted). “Averments of fraud must be 23 accompanied by the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba- 24 Geigy Corp., 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). 25 If the court dismisses the complaint, it “should grant leave to amend even if no request to 26 amend the pleading was made, unless it determines that the pleading could not possibly be cured 27 by the allegation of other facts.” See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In 28 making this determination, the court should consider factors such as “the presence or absence of 4 1 undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous 2 amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See 3 Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir.1989). 4 5 6 DISCUSSION I. UCL, FRAUD, AND CLRA CLAIMS Meyers alleges that BMW committed fraud by omission and engaged in deceptive and 7 fraudulent business practices by failing to disclose to consumers that the comfort access system 8 sometimes causes vehicles to spontaneously lock when the key remote is inside the vehicle. FAC 9 ¶ 13, 30. Meyers brings claims under the CLRA, the UCL, and alleges a general violation of fraud 10 United States District Court Northern District of California 11 by omission. To sustain a fraudulent omission claim under the CLRA or the UCL, a plaintiff must allege 12 either that the “omission is contrary to a representation actually made by the defendant, or an 13 omission of a fact the defendant was obligated to disclose.” Falk v. Gen. Motors Corp., 496 F. 14 Supp. 2d 1088, 1094-95 (N.D. Cal. 2007). Further, the plaintiff must allege that the omission is 15 related to a “safety issue.” Wilson, 668 F.3d at 1141. To properly allege an actionable omission 16 with regards to a safety issue, plaintiffs must allege (1) a defect; (2) a safety hazard; (3) a causal 17 connection between the alleged defect and the alleged safety hazard; and (4) that the defendant 18 knew of the defect at the time a sale was made. Id. at 1143-45. 19 20 A. Duty to Disclose A plaintiff may assert duty to disclose in four circumstances: “(1) when the defendant is in 21 a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of 22 material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact 23 from the plaintiff; and (4) when the defendant makes partial representations but also suppresses 24 some material fact.” Falk, 496 F. Supp. 2d at 1095. 25 Meyers has alleged that BMW had a duty to disclose because it had exclusive knowledge 26 of the comfort access defect. She pleads that BMW knew of the defect through its “dealerships, 27 pre-release data, and training manuals, among other internal sources of aggregate information 28 about the problem.” FAC ¶ 29. She further submits three customer complaints from BMW X5 5 1 owners which were submitted to the National Highway Traffic Safety Administration 2 (“NHTSA”). Id. ¶ 13. At least two of these complaints, dating from 2010 and 2011 appear to pre- 3 date Meyers’s purchase of her car, which is a 2013 model. Id.2 Courts disagree on whether consumer complaints are sufficient to demonstrate that a 5 defendant knew of an alleged defect. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 6 2012). In Wilson, the Ninth Circuit noted that some courts have found that customer complaints 7 can give rise to an inference that defendants knew of a defect, while others have said that such 8 complaints, on their own, are insufficient to show such knowledge. Compare Kowalsky v. 9 Hewlett-Packard Co., 771 F. Supp. 2d 1138, 1145 (N.D. Cal. 2010) (“[I]n some cases, allegations 10 of consumer complaints posted on a defendant’s own customer support website may be sufficient 11 United States District Court Northern District of California 4 to raise a reasonable inference that the defendant knew of a product defect.”), with Berenblat v. 12 Apple, Inc., No 08-cv-4969-PVT, 2010 WL 1460297, at *9 (N.D. Cal. 2010) (Customer 13 complaint, “[b]y themselves [] are insufficient to show that [the manufacturer] had knowledge [of 14 the defect].”). The Ninth Circuit’s discussion in Wilson suggests that customer complaints may support 15 16 knowledge when they are submitted to a forum the defendant is likely to view, and where they are 17 submitted before the plaintiff purchased the product. In Wilson the court concluded that plaintiffs 18 had not adequately alleged exclusive knowledge where they pointed to “undated customer 19 complaints” from an unclear source, and also alleged that HP had “access to the aggregate 20 information and data” related to the claimed defect. Wilson, 668 F.3d at 1146-47. The Wilson 21 court criticized the value of the customer complaints, noting that plaintiffs did not indicate “when 22 or how the complaints were made.” The court also highlighted that, because the complaints were 23 undated, they could “not support an inference that HP was aware of the defect at the time it sold 24 25 26 27 28 2 Meyers also alleges that a 2007 internal training document titled “Comfort Access vs-42 je 66 04 04 (093)” demonstrates that BMW knew of the comfort access defect in 2007 because the document acknowledges that “a Class Vehicle’s doors can lock while the Class Vehicle’s key is inside the Class Vehicle.” FAC ¶ 15. Meyers does not cite to a particular section of the document that acknowledges this information. However, simply acknowledging that the vehicle’s doors can lock while the Class Vehicle’s key is inside the Class Vehicle does not necessarily indicate an awareness that the comfort access system causes vehicles to spontaneously lock. I therefore do not rely on the training document in my analysis. 6 1 2 the Laptops to Plaintiffs.” Id. at 1148. Here, Meyers has submitted several dated complaints posted to the NHTSA website. As two of these complaints are dated prior to the time Meyers must have purchased her car, BMW 4 could have accessed this information and been aware of the complaints at the time Meyers 5 purchased her vehicle. Further, because manufacturers such as BMW use the NHTSA website to 6 communicate information to consumers, it is reasonable to infer that BMW has knowledge of and 7 is aware of the complaints submitted by consumers to the NHTSA. These consumer complaints, 8 in conjunction with Meyers’s other allegations that BMW knew of the comfort access defect 9 through its “dealerships, pre-release data, and training manuals, among other internal sources of 10 aggregate information about the problem,” can give rise to the inference that BMW knew of the 11 United States District Court Northern District of California 3 comfort access defect and had a duty to disclose it. Meyers has adequately pleaded that BMW had 12 exclusive knowledge of the comfort access defect. 13 Meyers has also alleged that BMW made a partial representation regarding the comfort 14 access system. She states that BMW represented to consumers that “To lock the vehicle, the 15 remote control must be located outside of the vehicle.” FAC ¶ 19. This statement could indicate 16 to consumers that the comfort access system will not lock the vehicle unless the remote control is 17 outside the vehicle. She asserts that contrary to this, the comfort access system is defective, and 18 can cause vehicles to spontaneously lock when the remote is inside. Id. ¶ 13. Accepting her 19 allegations as true, BMW’s representation about the function of the comfort access system is 20 misleading. The statement, which indicates that a user can only activate the comfort access 21 system if the key remote is outside the car, may be literally true, but it omits that the system may 22 nevertheless spontaneously activate the locks on its own while the remote is inside the vehicle. 23 On these facts, Meyers has adequately pleaded partial representation and a duty to disclose. See In 24 re Apple In-App Purchas Litig., 855 F. Supp. 2d 1030, 1039 (N.D. Cal. 2012) (partial 25 representation was met where defendant represented that its app was free, but did not disclose the 26 potential for in-app purchases). She has adequately alleged that BMW made a partial 27 representation regarding the comfort access system. 28 Meyers has adequately pleaded that BMW had a duty to disclose because it had exclusive 7 1 knowledge of the comfort access defect, and because it made a partial representation about the 2 comfort access defect. Although as discussed below, Meyers has failed to adequately plead active 3 concealment, because Meyers has pleaded two viable theories to sustain her fraud by omission 4 claim, I will not dismiss her CLRA or UCL claims for this reason. 5 B. Defect Meyers has adequately alleged a design defect. Meyers alleges that the comfort access 6 system is defective because “sometimes while the remote control is located inside a Class Vehicle, 8 the Class Vehicle spontaneously locks.” FAC ¶ 13. Although Meyers does not allege the 9 mechanical method by which this happens, she identifies that the defect is with the comfort access 10 system, she notes the defect works by spontaneously locking the vehicle, and she alleges that this 11 United States District Court Northern District of California 7 happens when the remote control is located inside the vehicle. Id. Meyers also presents factual 12 allegations from her own personal experience where she believes the comfort access system 13 caused the vehicle to spontaneously lock. Id. ¶ 16. She also submits customer complaints in 14 which individuals recount similar lockout experiences where their BMW’s have spontaneously 15 locked while their keys were inside the vehicle. Id. ¶ 13. These factual allegations, that the 16 comfort access system can, and has, spontaneously locked vehicles while the keys were inside, are 17 sufficient to allege a design defect with the comfort access system. 18 C. Safety Hazard Meyers has adequately alleged “the existence of an unreasonable safety risk.” Wilson, 668 19 20 F.3d at 1145. She asserts that the comfort access system’s spontaneous locking defect creates an 21 unreasonable safety risk that children will be locked inside a car. FAC ¶ 18. She cites that 22 “[f]rom 1998 to 2015, ever year at least 24 children have died from heatstroke as the result of 23 being locked inside vehicles.” Id. She has adequately pleaded the existence of an unreasonable 24 safety risk because she has alleged that children locked in vehicles can suffer serious injury and 25 death. 26 27 28 D. Causal Connection Between Alleged Defect and Alleged Safety Risk Meyers has also adequately alleged a causal connection between the alleged defect and alleged safety risk because she states that the comfort access system’s spontaneous locking defect 8 increases the risk that children will be locked in cars. Id. She explains that she personally locked 2 her child in the car as a result of the comfort access defect and points to consumer complaints 3 where other BMW X5 drivers have had similar experiences. Id. ¶ 13. BMW argues that Meyers 4 has not adequately alleged a causal connection because the BMW owners’ manual instructs that 5 drivers should always take their key remotes with them, and the comfort access system does not 6 present any safety risk if used as intended. Motion to Dismiss (“Mot.”), 13 (Dkt. No. 21-1). 7 While it appears that Meyers could have prevented a lockout by keeping her key remote on her 8 person, this does not mean there is no causal link between the defect and the safety risk. Even if 9 there are ways to prevent lockouts, the comfort access defect may make it more likely for drivers 10 to lock their children in cars if, as alleged, it causes the vehicles to spontaneously lock. Meyers 11 United States District Court Northern District of California 1 suggests that the comfort access defect makes it more likely that a driver will inadvertently lock a 12 child in the car. This is sufficient to plead a direct link between the defect alleged – spontaneous 13 locking – and the safety hazard alleged – children locked in cars. 14 E. Reliance 15 BMW argues that Meyers cannot sustain her UCL and CLRA claims because she has not 16 alleged actual reliance. Mot. 4. Meyers contends that that she need not allege actual reliance on 17 an omission claim and, alternatively, argues that the court can infer that she saw BMW 18 advertisements promoting its vehicles as safe and relied on them. Opposition (“Oppo.”) 20, (Dkt. 19 No. 31). 20 “For fraud based claims under the CLRA and UCL, plaintiff must also plead actual 21 reliance.” Ehrlich v. BMW of North America, LLC, 801 F. Supp. 2d 908, 919 (C.D. Cal. 2010). 22 “To prove reliance on an omission, a plaintiff must show that the defendant’s nondisclosure was 23 an immediate cause of the plaintiff’s injury-producing conduct. A plaintiff may do so by simply 24 proving that, had the omitted information been disclosed, one would have been aware of it and 25 behaved differently. That one would have behaved differently can be presumed, or at least 26 inferred, when the omission is material.” Daniel v. Ford Motor Co., 806 F. 3d 1217, 1225 (9th 27 Cir. 2015) (internal citations and quotations omitted). 28 Meyers has adequately alleged that the omission at issue was material because it related to 9 1 a safety hazard. See Ehrlich v. BMW of N. Am., LLC, 801 F. Supp. 2d 908, 917-19 (C.D. Cal. 2 2010) (Alleged defects that create “unreasonable safety risks” are material.). But she must also 3 show that, had the omitted information been disclosed, she would have been aware of it. Daniel, 4 806 F. 3d at 1225. 5 Meyers has alleged no facts indicating that she saw or relied on any BMW materials or 6 advertisements. Although she makes general allegations that BMW advertises its vehicles, she 7 does not allege that she herself viewed any of these materials. BMW argues that because she has 8 not alleged any facts indicating that she viewed or relied on BMW representations, she cannot 9 plausibly allege that, had a disclosure been made regarding the comfort access defect, she would 10 United States District Court Northern District of California 11 have seen it. In Daniel, the Ninth Circuit noted that there are “various ways in which a plaintiff can 12 demonstrate that she would have been aware of a defect, had disclosure been made.” Daniel, 806 13 F. 3d at 1226. Although the plaintiffs in that case had not viewed any advertisements, the Ninth 14 Circuit concluded that they had adequately alleged that they would have been aware of a defect, 15 had Ford disclosed it, because they “presented evidence that they interacted with and received 16 information from sales representatives at authorized Ford dealerships prior to purchasing their 17 Focuses.” Id. While Daniel supports the idea that there are many ways a plaintiff can establish 18 reliance, Meyers has not alleged any facts to indicate that she would have been aware of a 19 disclosure if one was made. Unlike in Daniel, Meyers does not allege that she interacted with 20 BMW representatives or sales associates prior to purchasing her vehicle. She does not disclose 21 when or from whom she purchased her vehicle and does not provide any details indicating that she 22 relied on BMW’s alleged omissions. While the standard for pleading reliance in an omission case 23 is low, Meyers has not provided any facts that would indicate she relied on BMW’s omissions. 24 Meyers has adequately alleged (1) that BMW had a duty to disclose information on the 25 comfort access defect because it had exclusive knowledge and because it made partial 26 representations; (2) that there is a comfort access defect that causes spontaneous locking; (3) that 27 children locked in cars is an unreasonable safety hazard; and (4) that there is a causal link between 28 the spontaneous locking and the hazard of locking children in cars. She has not adequately alleged 10 1 reliance. Because this is a necessary component of any consumer UCL or CLRA claim, she has 2 not adequately alleged fraud by omission under the UCL and CLRA. I GRANT BMW’s motion 3 to dismiss these claims. 4 To the extent that Meyers intends to bring a misrepresentation or “unfair” claim under the 5 UCL or CLRA, Meyers’s failure to allege reliance is fatal to these claims as well. I GRANT 6 BMW’s motion to dismiss any remaining UCL and CLRA claims. 7 8 9 II. COMMON LAW FRAUD To sustain a California common law fraudulent omission claim, a plaintiff must allege: “(1) the defendant concealed or suppressed a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed 11 United States District Court Northern District of California 10 the facts with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the 12 fact and would not have acted as he did if he had known of the concealed or suppressed fact, and 13 (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained 14 damage.” Jordan v. Paul Financial, LLC, 285 F.R.D. 435, 454 (N.D. Cal. 2012). These elements 15 are “essentially identical to those for a claim of active concealment under the CLRA and the UCL 16 fraud prong.” Elias v. Hewlett-Packard Co., No. 12-cv-00421-LHK, 2014 WL 493034, *5 (N.D. 17 Cal. 2014) 18 Meyers has not adequately alleged active concealment because she has not alleged that 19 BMW took any affirmative acts to conceal. “An allegation of active concealment must plead more 20 than an omission; rather, a plaintiff must assert affirmative acts of concealment; e.g., that the 21 defendant sought to suppress information in the public domain or obscure the consumers’ ability 22 to discover it.” Taragan v. Nissan North America, Inc., No. 09-cv-3660-SBA, 2013 WL 3157918, 23 *7 (N.D. Cal. Jun. 20, 2013). Meyers alleges that BMW actively concealed the comfort access 24 defect because “Defendants did not disclose to consumers that the Comfort Access Defect exists, 25 did not reimburse consumers for costs incurred in connection with the Comfort Access Defect, and 26 did not correct mistakes in Class Vehicles’ owner’s manuals.” FAC ¶ 52. This is insufficient 27 because Meyers has alleged only that BMW failed to disclose or take certain actions. These 28 alleged omissions are insufficient to sustain an active concealment claim. 11 1 BMW’s motion to dismiss this claim is GRANTED. 2 III. IMPLIED WARRANTY OF MERCHANTABILITY 3 Meyers has failed to adequately plead a breach of the implied warranty of merchantability under the California Commercial Code because she has not alleged facts indicating she is in 5 privity with BMW or that she falls under an exception to the privity requirement. “Under 6 California Commercial Code section 2314 . . . a plaintiff asserting breach of warranty claims must 7 stand in vertical contractual privity with the defendant.” Clemens v. Daimlerchrysler, 534 F.3d 8 1017, 1023 (9th Cir. 2008). “[A]n end consumer . . . who buys from a retailer is not in privity 9 with a manufacturer.” Id. There are two exceptions to this general privity requirement: (1) “when 10 the plaintiff relies on written labels or advertisements of a manufacturer,” and (2) “where the end 11 United States District Court Northern District of California 4 user is an employee of the purchaser.” Id. at 1024. 12 Meyers does not allege when, or from whom, she purchased her BMW X5. She pleads 13 only that she purchased her vehicle in San Francisco. FAC ¶ 2. While it is unclear from whom 14 she purchased her BMW X5, she could not have purchased it directly from BMW, which 15 manufactures, but does not sell vehicles, directly to consumers. She is, therefore, not in privity 16 with BMW. 17 Meyers does not fall under either of the privity exceptions in implied warranty cases. She 18 does not allege that she relied on any written labels or advertisements of BMW when she 19 purchased her vehicle. Although she states generally that BMW advertises that its “Class Vehicles 20 are extremely safe vehicles, and are in fact, ‘The Ultimate Driving Machine,’ ” she does not allege 21 that she personally viewed, read, or relied on any such advertisements. Id. ¶ 20. Further, she 22 clearly does not fall under the second exception as she was not an employee of the purchaser. As 23 Meyers is not in privity with BMW and does not fall under one of the exceptions to the privity 24 requirement, her implied warranty claim fails. Clemens, 534 F.3d at 1023. 25 In her opposition, Meyers argues that privity is not required in implied warranty cases 26 brought under the Song-Beverly Consumer Warranty Act. Oppo. 27. However, she has not 27 alleged a claim under this Act. Because I cannot consider claims brought for the first time in the 28 pleadings, and because she has not alleged vertical privity, as required by Clemens, to sustain a 12 1 claim under the California Commercial Code, I GRANT BMW’s motion to dismiss Meyers’s 2 implied warrant claim. 3 4 CONCLUSION For the reasons outlined above I GRANT BMW’s motion to dismiss Meyers’s UCL and 5 CLRA fraudulent omission claims; GRANT BMW’s motion to dismiss Meyers’s remaining UCL 6 and CLRA claims; GRANT BMW’s motion to dismiss Meyers’s Common Law Fraud claim; and 7 GRANT BMW’s motion to dismiss Meyers’s Implied Warranty Claim. Meyers will have 20 days 8 to file an amended complaint. 9 10 United States District Court Northern District of California 11 12 IT IS SO ORDERED. Dated: October 11, 2016 ______________________________________ WILLIAM H. ORRICK United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13