# Victorino v. FCA US LLC

> District Court, S.D. California · September 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10084403

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 CARLOS VICTORINO and ADAM Case No.: 16cv1617-GPC(JLB)
TAVITIAN, individually, and on behalf of
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other members of the general public ORDER DENYING DEFENDANT’S
13 similarly situated, MOTION TO DECERTIFY CLASS

14 Plaintiffs,
[Dkt. No. 370.]
15 v.
16 FCA US LLC, a Delaware limited liability
company,
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Defendant.
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Before the Court is Defendant’s second motion to decertify class. (Dkt. No. 370.)
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Plaintiff filed an opposition and Defendant replied. (Dkt. Nos. 374, 376.) The Court
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finds that the matter is appropriate for decision without oral argument pursuant to Local
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Civ. R. 7.1(d)(1). Based on the reasoning below, the Court DENIES Defendant’s motion
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to decertify.
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1 Background
2 Plaintiff Carlos Victorino1 (“Victorino” or “Plaintiff”) filed the operative putative
3 first amended class action complaint (“FAC”) against Defendant FCA US LLC (“FCA”
4 or “Defendant”) based on defects in the 2013-2015 Dodge Dart vehicles equipped with a
5 Fiat C635 manual transmission built on or before November 12, 2014 (“Class Vehicles”).
6 (Dkt. No. 104, FAC.) He claims that the alleged defect causes his vehicle’s clutch to fail
7 and stick to the floor. (Id.) The FAC alleged five causes of action for violations of
8 California’s Consumer Legal Remedies Act (“CLRA”), California’s unfair competition
9 law (“UCL”), a state law breach of implied warranty pursuant to the Song-Beverly
10 Consumer Warranty Act (“Song-Beverly Act”), a federal law breach of implied warranty
11 pursuant to the Magnuson-Moss Warranty Act (“MMWA”), and unjust enrichment. (Id.)
12 After the Court’s ruling on Defendant’s motion for summary judgment and subsequent
13 motion for reconsideration, the remaining causes of action in the case are the breach of
14 implied warranty of merchantability under the Song-Beverly Act and the MMWA, and a
15 UCL claim premised on the breach of implied warranty claims. (Dkt. Nos. 206, 240.)
16 On June 13, 2018, the Court denied class certification and relied on the reasoning
17 in Nguyen v. Nissan North Am., Case No. 16cv5591-LHK, 2018 WL 1831857 (N.D. Cal.
18 Apr. 9, 2019), to deny class certification on the issue of whether Plaintiff’s damages
19 model satisfied predominance. (Dkt. No. 265.) On July 26, 2019, the Ninth Circuit
20 reversed the district court’s denial of class certification in Nguyen and remanded the case
21 for further proceedings. See Nguyen v. Nissan North Am., Inc., 932 F.3d 811 (9th Cir.
22 2019). Relying on the Ninth Circuit’s reasoning in Nguyen, on October 17, 2019, the
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1 Plaintiff Adam Tavitian was also a named Plaintiff in the FAC but, due to a settlement, the Court
27 granted the parties’ joint motion to dismiss him on June 22, 2018. (Dkt. Nos. 259, 260, 266, 267.)
1 Court granted Plaintiff’s renewed motion for class certification. (Dkt. No. 318.) The
2 class is defined as,
3 All persons who purchased or leased in California, from an authorized
dealership, a new Class Vehicle primarily for personal, family or household
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purposes.
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(Id. at 24.2) On May 8, 2020, the Court denied Defendant’s motion to decertify class.
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(Dkt. No. 348.) The Court rejected FCA’s argument that the class as currently defined
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raised significant individual issues in identifying the class members, that the class as
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defined would require numerous individual trials in determining affirmative defenses,
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and individual issues would predominate concerning damages. (Id.) On May 20, 2020,
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FCA filed a petition for permission to appeal the Court’s order. (Dkt. No. 349.) On
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August 31, 2020, the Ninth Circuit denied FCA’s petition for permission to appeal. (Dkt.
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No. 354.)
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On November 20, 2020, FCA filed a motion for reconsideration of the Court’s
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order denying motion to decertify specifically seeking to modify the class definition.
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(Dkt. No. 355.) After full briefing, on February 19, 2021, the Court denied FCA’s
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motion for reconsideration. (Dkt. Nos. 359, 362, 366.)
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On July 27, 2021, FCA filed the instant second motion to decertify based on recent
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United States Supreme Court and Ninth Circuit precedent which is fully briefed. (Dkt.
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No. 371, 374, 376.)
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Discussion
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A. Legal Standard of Decertification
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“An order that grants or denies class certification may be altered or amended
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before final judgment.” Fed. R. Civ. P. 23(c)(1)(C); Rodriguez v. West Publ'g Corp., 563
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27 2 Page numbers are based on the CM/ECF pagination.
1 F.3d 948, 966 (9th Cir. 2009) (“A district court may decertify a class at any time”). The
2 Court may consider “subsequent developments in the litigation.” Gen. Tel. Co. of S.W. v.
3 Falcon, 457 U.S. 147, 160 (1982).
4 A “party seeking decertification of a class should bear the burden of demonstrating
5 that the elements of Rule 23 have not been established.” Slaven v. BP America, Inc., 190
6 F.R.D. 649, 651 (C.D. Cal. 2000) (emphasis in original); Gonzales v. Arrow Fin. Servs.,
7 Inc., 489 F. Supp. 2d 1140, 1153 (S.D. Cal. 2007). The standard for class decertification
8 is the same as class certification: a district court must be satisfied that the requirements of
9 Rules 23(a) and (b) are met to allow plaintiffs to maintain the action on a representative
10 basis. Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 947 (9th Cir. 2011); see also
11 O'Connor v. Boeing N. Am., Inc., 197 F.R.D. 404, 410 (C.D. Cal. 2000) (in evaluating
12 whether to decertify the class, the court applies the same standard used in deciding
13 whether to certify the class in the first place). The district court has discretion on whether
14 to decertify a class. See Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807,
15 816 (9th Cir. 1997).
16 Under Rule 23(b)(3), the plaintiff must demonstrate that “the questions of law or
17 fact common to class members predominate over any questions affecting only individual
18 members.” Fed. R. Civ. P. 23(b)(3). Predominance is satisfied “[w]hen common
19 questions present a significant aspect of the case and they can be resolved for all
20 members of the class in a single adjudication.” True Health Chiropractic, Inc. v.
21 McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018) (quoting Mazza v. Am. Honda
22 Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012)).
23 It is to be noted that the question on decertification is whether the Rule 23 elements
24 continue to be satisfied, see Marlo, 639 F.3d at 947, and not conduct a mini-trial to
25 determine if the class “could actually prevail on the merits of their claims.” See Ellis v.
26 Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir. 2011). The district court must
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1 delve into the merits of the underlying claim only to the extent necessary to determine
2 whether common questions of law or fact predominate. Id. “The fact that certain
3 elements of proof may favor the defendant on the merits does not negate class
4 certification; the issue is whether the proof is amenable to class treatment.” Siqueiros v.
5 General Motors LLC, Case No. 16-cv-07244-EMC, 2021 WL 4061708, at *3 (N.D. Cal.
6 Sept. 7, 2021). Moreover, “[n]either the possibility that a plaintiff will be unable to prove
7 [her] allegations, nor the possibility that the later course of the suit might unforeseeably
8 prove the original decision to certify the class wrong, is a basis for [decertifying] a class
9 which apparently satisfies the Rule.” Id. (quoting Blackie v. Barrack, 524 F.2d 891, 901
10 (9th Cir. 1975)).
11 B. Analysis
12 Defendant argues that the class should be decertified based on the recent rulings in
13 TransUnion LLC v. Ramirez, __U.S.__, 141 S. Ct. 2190 (2021), and Olean Wholesale
14 Grocery Coop., Inc. Bumble Bee Foods LLC, 993 F.3d 774, 782 (9th Cir. 2021)
15 contending Plaintiff must now “prove, by a preponderance of the evidence, that all
16 members of the class suffered an injury-in fact to establish standing to pursue their
17 claim.” (Dkt. No. 370-1 at 4.) Because FCA’s evidence shows that more than 80% of
18 class members in this case suffered no injury at all, the class must be decertified. (Id. at
19 4.) In response, Plaintiff argues that TransUnion is distinguishable because the standing
20 issue was decided after a trial. (Dkt. No. 374.) Moreover, Olean Wholesale has no
21 precedential significance because that panel decision was vacated and the Ninth Circuit
22 ordered a rehearing en banc. Olean Wholesale Grocery Coop., Inc. Bumble Bee Foods
23 LLC, 5 F. 4th 950 (2021). In reply, FCA maintains that the ruling in TransUnion
24 warrants decertification of the class in this case. (Dkt. No. 376.) Because the decision in
25 Olean Wholesale has been vacated, the Court only considers Defendant’s argument
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1 Article III, Section 2 the United States Constitution requires that a plaintiff have
2 standing to bring a claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
3 “[T]he ‘irreducible constitutional minimum of [Article III] standing’” requires that “[t]he
4 plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
5 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
6 judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan,
7 504 U.S. at 560). “To establish injury in fact, a plaintiff must show that he or she
8 suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
9 and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan,
10 504 U.S. at 560). The Supreme Court noted that concreteness is quite distinct from
11 particularization. Id. An injury is “particularized” if it affects “the plaintiff in a personal
12 and individual way.” Id. In addition, for an injury to be “concrete”, it must be “de
13 facto,” meaning that it is “real” and not “abstract.” Id. However, an injury need not be
14 “tangible” in order to be “concrete,” and intangible injuries may constitute injury in fact.
15 Id. at 1549. “Economic injury is clearly a sufficient basis for standing.” San Diego Cnty.
16 Gun Rights Committee v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996); Debernardis v. IQ
17 Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019) (“Economic injuries are
18 ‘[c]ertainly’ concrete.”).
19 The plaintiff bears the burden of demonstrating the elements of Article III
20 standing. Spokeo, Inc., 136 S. Ct. at 1547. A plaintiff must prove standing “with the
21 manner and degree of evidence required at the successive stages of the litigation.”
22 TransUnion, 141 S. Ct. at 2208 (quoting Lujan, 504 U.S. at 561). For example, on a
23 motion to dismiss, “general factual allegations of injury resulting from the defendant's
24 conduct may suffice” and on a summary judgment, a plaintiff “can no longer rest on such
25 ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ [ ]
26 which for purposes of the summary judgment motion will be taken to be true. And at the
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1 final stage, those facts (if controverted) must be “supported adequately by the evidence
2 adduced at trial.” Lujan, 504 U.S. at 561 (citations omitted). At summary judgment, that
3 means producing “evidence and specific facts” of concrete harm, traceability, and
4 redressability. Ctr. for Biological Diversity v. Exp.-Imp. Bank of the U.S., 894 F.3d 1005,
5 1012 (9th Cir. 2018). In a class action, Article III standing is met if at least one named
6 plaintiff satisfies the requirements. Bates v. United Parcel Serv., 511 F.3d 974, 985 (9th
7 Cir. 2007).
8 On summary judgment, the Court concluded Plaintiff raised a genuine issue of
9 material fact whether the alleged defects in the Class Vehicles breached the implied
10 warranty of merchantability under state and federal law.3 (Dkt. No. 206.) At class
11 certification, FCA argued that predominance could not be satisfied because Plaintiff
12 provided no evidence that there was a defect in all Class Vehicles at the time of purchase.
13 (Dkt. No. 318 at 7.) After a review of the record, the Court concluded there was a factual
14 dispute on the merits of whether there was a defect on all Class Vehicles at the time of
15 sale and that this factual dispute was not proper on a motion for class certification. (Id. at
16 12.) It concluded that at trial, Plaintiff will have to prove that all Class Vehicles had a
17 defect at the time of sale and if Plaintiff fails to demonstrate a defect in all vehicles at the
18 time of sale, all class claims will fail in one fell swoop. (Id. (citing Amgen Inc. v. Conn.
19 Retirement Plans and Trust Funds, 568 U.S. 455, 460 (2013) (Rule 23(b)(3) requires a
20 showing that there are questions common to the class predominate, not that the answer to
21 the questions will be in favor of the class, a merits question . . . a class claim “will prevail
22 or fail in unison.”).) Thus, the Court concluded that predominance had been met.
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3 Defendant did not raise the issue of standing at any time prior to the instant motion. However, the
argument Defendant raises to support its motion to decertify on standing concerns the merits of whether
27 the Class Vehicles had an inherent defect at the time of sale.
1 FCA now raises the same argument in the guise of standing arguing that its expert
2 opined that 80% of class members did not suffer an injury. However, this evidence and
3 the issue whether all Class Vehicles had an inherent defect were already presented at
4 class certification, and addressed in the Court’s order granting class certification where it
5 concluded there was a disputed issue of material fact on whether all Class Vehicles had a
6 defect at the time of sale. (See Dkt. No. 318 at 10-13.) The Court found that for
7 purposes of class certification, common issues predominate because, at trial, Plaintiff will
8 have to prove that all Class Vehicles had a defect at the time of sale. (Id.)
9 By raising a genuine issue of material fact at summary judgment, Plaintiff has
10 provided the degree of evidence necessary at this stage of the litigation to support
11 standing. See TransUnion, 141 S. Ct. at 2208; Central Delta Water Agency v. United
12 States, 306 F.3d 938, 947 (9th Cir. 2002) (“Thus, at the summary judgment stage the
13 plaintiffs need not establish that they in fact have standing, but only that there is a
14 genuine question of material fact as to the standing elements.”). Moreover, at class
15 certification, Plaintiff demonstrated that common issues of fact and law predominate over
16 individual ones. Defendant has not provided any new facts or authority to alter the
17 Court’s prior decision on class certification.
18 TransUnion does not support Defendant’s argument. First, the Court addressed
19 standing after a jury trial and not at summary judgment or class certification stage. At
20 trial, a plaintiff must support standing by a preponderance of the evidence. See
21 TransUnion, 141 S. Ct at 2208; Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829
22 (7th Cir. 1999) (“‘[W]here standing is challenged as a factual matter, the plaintiff bears
23 the burden of supporting the allegations necessary for standing with “competent proof.” .
24 . . “Competent proof” requires a showing by a preponderance of the evidence that
25 standing exists.’”); see United States v. $57,790.00, 263 F. Supp. 2d 1239, 1242 (S.D.
26 Cal. 2003) (“at trial standing must be proved by a preponderance of the evidence”).
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1 Therefore, Defendant’s argument that Plaintiff, at this stage of the proceedings prior to
2 trial, must demonstrate by a preponderance of the evidence that common questions
3 predominate on the issue of standing is not supported by the ruling in TransUnion.
4 Next, TransUnion concerned a statutory violation of the Fair Credit Reporting Act
5 (“FCRA”) addressing intangible injuries. In TranUnion, the plaintiffs alleged that the
6 defendant “failed to comply with statutory obligations (i) to follow reasonable procedures
7 to ensure the accuracy of credit files so that the files would not include OFAC4 alerts
8 labeling the plaintiffs as potential terrorists; and (ii) to provide a consumer, upon request,
9 with his or her complete credit file, including a summary of rights.” TransUnion LLC,
10 141 S. Ct. at 2207. The Court held that inaccuracies or misleading information, by
11 themselves, in a consumer's internal credit file do not constitute concrete harm unless the
12 file had been transmitted to third parties and thereby caused reputational harm associated
13 with defamation. Id. at 2208-10. The Court rejected the plaintiffs’ additional argument
14 that the inaccuracies themselves injured class members by raising the risk of future harm
15 because such claimed injury was “too speculative to support Article III standing” and
16 because “the plaintiffs did not demonstrate a sufficient likelihood” that the inaccurate
17 reports would be requested by and provided to third parties. Id. at 2212. Therefore, only
18 the named plaintiff and the 1,853 class members whose reports were disseminated had
19 standing because only these plaintiffs had proven a concrete harm. Id. at 2214.
20 Here, in contrast to the intangible injuries suffered by the plaintiffs in TransUnion,
21 Plaintiff alleges that because all Class Vehicles inherently had a defective Clutch System
22 at the time of sale, he suffered economic loss under a benefit of the bargain theory which
23 purports to measure the difference in value between a defective and a defect-free Clutch
24 System.
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27 4 United States Treasury Department’s Office of Foreign Assets Control.
1 “[P]alpable economic injuries have long been recognized as sufficient to lay the
2 basis for standing.” Sierra Club v. Morton, 405 U.S. 727, 733–34 (1972); Maya v.
3 Centex Corp., 658 F.3d 1060, 1069 (9th Cir. 2011) (plaintiffs have standing when they
4 spend money “that, absent defendants’ actions, they would not have spent”); San Diego
5 Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996) (“Economic injury
6 is clearly a sufficient basis for standing.”); Debernardis v. IQ Formulations, LLC, 942
7 F.3d 1076, 1084 (11th Cir. 2019) (“[A]n economic injury qualifies as a concrete injury,”
8 and “[a] person experiences an economic injury when, as a result of a deceptive act or an
9 unfair practice, he is deprived of the benefit of his bargain.”). “Economic injury under
10 the ‘benefit of the bargain’ theory is widely recognized to confer standing when
11 adequately alleged.” Short v. Hyundai Motor Co., 444 F. Supp. 3d 1267, 1277 (W.D.
12 Wash. Mar. 16, 2020) (citations omitted). In other words, allegations of “overpayment,
13 loss in value, or loss of usefulness” confer standing. Id.; Doyle v. Chrysler Grp., LLC,
14 663 F. App'x 576, 578 (9th Cir. 2016) (plaintiff had standing because he alleged that he
15 “suffered economic loss when he purchased a replacement regulator with an undisclosed
16 safety defect”); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales
17 Practices, & Prod. Liab. Litig., 754 F. Supp. 2d 1145, 1162 (C.D. Cal. 2010) (“While a
18 statistically significant propensity for [an alleged vehicle defect] may not be considered
19 ‘actual’ or ‘imminent,’ the market effect of the [alleged defect] undoubtedly is actual or
20 imminent (as well as concrete and particularized). Therefore, Plaintiff has properly
21 asserted standing based on an economic loss. See TransUnion, LLC, 141 S. Ct. at 2204
22 (“[t]he most obvious [concrete injuries] are traditional tangible harms, such as physical
23 harms and monetary harms”).
24 Accordingly, Defendant’s reliance on TransUnion is misplaced and the Court
25 DENIES Defendant’s motion to decertify. See Siqueiros, 2021 WL 4061708, at *3-4
26 (“Plaintiffs who purchased defective vehicles suffered a past concrete injury under
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1 || Article III when they overpaid for those vehicles, regardless of whether they feel the
2 || effects of the oil-consumption defect in the future.”).
3 Conclusion
4 Based on the above, the Court DENIES Defendant’s second motion for
5 || decertification. The hearing set on September 17, 2021 shall be vacated.
6 IT IS SO ORDERED.
7 Dated: September 9, 2021
8 Hon. athe Cae
9 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084403. Public record. Not legal advice.