Browning v. American Honda Motor Co., Inc.

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5 SAN JOSE DIVISION

6

7 RONDA ANN BROWNING, et al., Case No. 20-cv-05417-BLF

8 Plaintiffs,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART MOTION TO

DISMISS SECOND AMENDED

10 AMERICAN HONDA MOTOR CO., INC., COMPLAINT

et al.,

11 [Re: ECF No. 60]

Defendants.

12

13 In this putative class action, Plaintiffs allege two defects in their 2018–2019 Honda

14 Odyssey vehicles, which are equipped with a 9-speed automatic transmission called the ZF 9HP

15 Automatic Transmission. Plaintiffs allege that the Transmission (1) has two modules in its

16 software that fail to communicate properly and (2) torn sealing gaskets that occur during

17 assembly. These defects, Plaintiffs claim, cause “rough and delayed shifting, loud noises during

18 shifting, harsh engagement of gears, sudden [and] harsh accelerations and decelerations, and

19 sudden loss of power.” Eight named Plaintiffs seek to represent a nationwide class and seven

20 subclasses, each of which asserts implied warranty, express warranty, and state consumer

21 protection claims.

22 Before the Court is Defendant American Honda Motor Co., Inc.’s1 motion to dismiss the

23 Second Amended Complaint on multiple grounds. See ECF No. 60 (“MTD”); see also ECF No.

24 66 (“Reply”). Plaintiffs oppose the motion, see ECF No. 65 (“Opp.”), and the Court held oral

25 argument on February 3, 2022, see ECF No. 68. For the reasons discussed on the record and

26

27 1 The Court will refer to this defendant as “Honda” in this order for simplicity, except where

1 explained below, the Court GRANTS IN PART WITH LEAVE TO AMEND IN PART and

2 DENIES IN PART the motion to dismiss.

3 I. BACKGROUND

4 As alleged in the Second Amended Complaint, ECF No. 55 (“SAC”), and accepted as true

5 for the purposes of this motion, Honda designs, manufacturers, markets, distributes, sells, and

6 services the Honda Odyssey vehicle. SAC ¶ 1. Plaintiffs allege that in 2014, Honda began

7 equipping certain of its vehicles with a 9-speed automatic transmission called the ZF 9HP

8 Automatic Transmission (“Transmission”). Id. ¶ 3. The Transmission uses a unique 9.8 ratio

9 spread and computer-controlled shifting that were marketed as a significant technological

10 advancement from previous transmissions. Id. ¶ 5. The different ratio spread ideally allows for

11 shorter shifts between gears, keeping the engine in a narrow, optimal band of RPMs for as long as

12 possible, and borrows some characteristics of manual transmissions, such as “dog clutches,”

13 enabling greater fuel efficiency. Id. ¶¶ 5, 8.

14 Plaintiffs allege, however, that the Transmission suffers from two defects. First, Plaintiffs

15 allege that “the transmission end cover sealing gasket was damaged during the manufacturing,

16 assembly, and/or installing process” in the Odyssey vehicles (the “Sealing Gasket Defect”). SAC

17 ¶ 6. Because of the damaged sealing gasket, the Transmission is not properly sealed and thus

18 leaks fluid. Id. The leak results in insufficient transmission fluid, which causes the Transmission

19 to fail to maintain necessary hydraulic pressure or properly lubricated parts. Id. This results in

20 gear slippage, difficulty switching gears, lurching, excess noise from the Transmission, a burning

21 smell, and even transmission failure. Id.

22 Second, Plaintiffs allege that “there is improper design and/or calibration of the software in

23 control of the [T]ransmission, including the Transmission Control Module and the Powertrain

24 Control Module” in the Odyssey vehicles (the “Software Calibration Defect”). SAC ¶ 7. The

25 Transmission Control Module and the Powertrain Control Module control the function of the

26 transmission and its interaction with the engine. Id. While the Transmission may be delivered by

27 a component manufacture with software already programmed, Honda must ensure that the

1 failed to do this properly, resulting in mistimed gear shifting. Id. This causes a rough, delayed, or

2 sudden failure to shift; grinding or other loud noises during shifting; harsh engagement of gears;

3 sudden or harsh accelerations or decelerations; and sudden loss of power. Id.

4 Plaintiffs Ronda Ann Browning, Divina Pappas, Brian Pappas, Kali Wescott, Eric Wescott,

5 Tony Boatwright, Chuen Yong, and Daniel Pina each purchased a Honda Odyssey vehicle in the

6 model years 2018 or 2019. Each of their experiences is summarized below.

7 Ronda Ann Browning. Plaintiff Ronda Ann Browning, a Florida resident, purchased a

8 new 2019 Honda Odyssey on July 3, 2018 from a Honda dealership in Orlando, Florida. SAC

9 ¶¶ 23–24. Before purchasing her vehicle, she researched the vehicle online, reviewed the window

10 sticker, and test drove and discussed the Odyssey vehicle with a sales representative. Id. ¶ 27.

11 Within the first few months after purchase, her vehicle exhibited harsh or delayed shifting, delayed

12 accelerations, “banging into gear,” jerking, shuddering, lurching, and lack of power. Id. ¶ 28. She

13 returned the vehicle to the dealership on multiple occasions, including at 8,447 miles and 9,746

14 miles, complaining of these symptoms. Id. ¶¶ 30–31. On one repair occasion, she drove the

15 vehicle with a service technician, who acknowledged that he heard the problem. Id. ¶ 32. On each

16 occasion, the vehicle was returned to her and the technicians claimed it was “working as

17 designed.” Id. ¶¶ 30–31, 33.

18 Divina and Brian Pappas. Plaintiffs Divina and Brian Pappas, Ohio residents, purchased a

19 new 2018 Honda Odyssey on March 6, 2018 from an authorized Honda dealership in their town of

20 Maumee, Ohio. SAC ¶¶ 37–38. Prior to purchasing their vehicle, the Pappases spent time

21 researching it online and reviewed the window sticker. Id. ¶ 40. They also test drove the vehicle

22 with a sales representative and specifically asked the salesperson about the Transmission. Id.

23 Within the first day of their purchase, the vehicle started exhibiting harsh or delaying shifting or

24 engagement, delayed accelerations, banging into gear, lurching, and a lack of power, “sometimes

25 feeling like it was going to stall.” Id. ¶ 42. The problems persisted despite repair attempts. Id.

26 One of those repair attempts was in July 2019, in which the dealership performed a “ROAD

27 FORCE” update and returned the vehicle claiming it was “OPERATING AS DESIGNED.” Id.

1 vehicle started shaking violently for an elongated period of time. Id.

2 Kali and Eric Wescott. Kali and Eric Wescott, residents of Michigan, purchased a new

3 2019 Honda Odyssey from a dealership in Muskegon, Michigan. SAC ¶¶ 48–49. They conducted

4 online research, reviewed the window sticker, and conducted a test drive prior to purchasing. Id.

5 ¶ 51. Prior to purchase, the dealer representatives told them that the Odyssey “came with a top-of-

6 the-line nine-speed transmission.” Id. Within a few months of their purchase, the vehicle

7 exhibited similar symptoms as did the vehicles of Browning and the Pappases. Id. ¶ 53. The

8 Wescotts brought their vehicle in for service to the dealership at least three times, on February 27

9 2019, August 13, 2019, and August 19, 2019. Id. ¶¶ 54–56. The dealer technicians characterized

10 the behaviors they observed during testing as “normal characteristic[s]” of the Transmission. Id

11 ¶¶ 55–56. The Wescotts continue to experience the symptoms. Id. ¶ 58.

12 Tony Boatwright. Tony Boatright, a South Carolina resident, purchased a new 2019

13 Honda Odyssey from a dealership in Rock Hill, South Carolina. SAC ¶¶ 60–61. Boatwright too

14 researched the Odyssey prior to purchase on Honda’s website, the dealer’s website, and through

15 discussions with the sales representatives. Id. ¶ 63. Boatwright’s vehicle also experienced issues

16 within the first few months. Id. ¶ 65. When slowing down and attempting to reaccelerate, the

17 vehicle often fails to get into gear; when it does, it does so with a jerk. Id. The transmission also

18 independently shifts, causing the vehicle to gain too much speed going downhill and forcing

19 Boatwright to aggressively brake. Id. Boatwright brought the vehicle to the dealership within

20 three months, but was told that the vehicle was operating normally. Id. ¶ 66. Boatright also

21 phoned Honda’s customer service hotline and filed a complaint with the National Highway Traffic

22 Safety Administration (“NHTSA”) relating to the vehicle’s issues. Id. ¶¶ 67–68. The vehicle still

23 exhibits the problems. Id. ¶ 71.

24 Chuen Yong. Cheun Yong, a Texas resident, purchased a new 2019 Honda Odyssey from

25 a Honda dealership in Irving, Texas. SAC ¶¶ 73–74. Yong, the previous owner of an older

26 Odyssey, researched the vehicle online and test drove it prior to purchase. Id. ¶ 76. A week or

27 two after purchasing, the vehicle exhibited the problems described above, especially at speeds

1 the spring of 2020, Yong took the vehicle to the dealership from which he purchased it, and

2 service technicians there acknowledged the problem during a test drive. Id. ¶ 79. When the dealer

3 technicians reported back to him after a call to Honda, they told him the behavior was normal for

4 the vehicle. Id. Yong took the vehicle on two other occasions to a different dealership, but no

5 repairs were conducted. Id. ¶ 80. His vehicle problems have continued. Id. ¶ 82.

6 Daniel Pina. Daniel Pina, a California resident, purchased a 2019 Honda Odyssey vehicle

7 from a dealership in Fontana, California in October 2019. SAC ¶¶ 84–85. Pina researched the

8 vehicle online and visited a dealership prior to purchase. Id. ¶ 87. At the dealership, Pina

9 reviewed the window sticker and spoke with an employee regarding the vehicle’s features,

10 including the Transmission. Id. Shortly after the purchase, the vehicle exhibited the same

11 symptoms described above. Id. ¶ 89. Pina brought his vehicle into dealerships at least four times

12 on February 14, 2019, May 7, 2019, October 20, 2019, and again in October or November 2019.

13 Id. ¶¶ 90–93. In each case, the dealer did not perform repairs and the symptoms continued. Id.

14 ¶ 90–93, 95.

15 Based on these allegations, Plaintiffs have filed suit against Honda asserting claims for

16 breach of implied warranty (Florida, Ohio, South Carolina, Texas, California), breach of express

17 warranty (South Carolina, Texas, California), violation of state consumer protection statutes

18 (Florida, Ohio, Texas, California), and fraud by omission / fraudulent concealment (no state law

19 specified). SAC ¶¶ 168–386. Each claim is brought by the Plaintiff or Plaintiffs in that respective

20 state. Plaintiffs further seek to represent a nationwide class of individuals who purchased 2018–

21 2019 Honda Odyssey vehicles equipped with the Transmission. Id. ¶ 160. Each Plaintiff (or

22 couple of Plaintiffs) seeks to represent a subclass in their individual state, with Pina seeking to

23 represent both a California subclass and a Consumer Legal Remedies Act (“CLRA”) subclass. Id.

24 II. LEGAL STANDARD

25 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

26 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation

27 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d

1 as true all well-pled factual allegations and construes them in the light most favorable to the

2 plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court

3 need not “accept as true allegations that contradict matters properly subject to judicial notice” or

4 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

5 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation

6 marks and citations omitted). While a complaint need not contain detailed factual allegations, it

7 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

8 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

9 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the

10 reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to

11 dismiss, the Court’s review is limited to the face of the complaint and matters judicially

12 noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v.

13 Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983).

14 III. DISCUSSION

15 Honda’s motion raises a panoply of issues with Plaintiffs’ pleading, some of which apply

16 generally to all claims and others that apply only to specific Plaintiffs or states’ laws. The Court

17 considers each of these arguments in turn.

18 A. Adequacy of Defect Allegations

19 Honda first argues that Plaintiffs do not adequately plead facts to allege defects in their

20 vehicles. MTD at 4–6, 12–13. The Court evaluates each argument regarding the two purported

21 defects.

22 i. General Adequacy of Allegations

23 First, Honda argues that Plaintiffs have not adequately pled any defect because the SAC

24 continues to assert that the “fuel-economy design” of the Transmission is the cause of the issues

25 that Plaintiffs experienced. MTD at 4. There is “no connection” between the fuel-efficient design

26 and the two alleged defects, Honda says. The Court finds this argument is based on a

27 mischaracterization of Plaintiffs’ allegations. As Plaintiffs urge, see Opp. at 3–4, and as the Court

1 design” only provided background information about the Transmission. See Browning v. Am.

2 Honda Motor Co., Inc., 549 F. Supp. 3d 996, 1007 (N.D. Cal. 2021). Honda itself in its motion

3 identifies the two defects that Plaintiffs have alleged—(1) “a manufacturing defect that results in a

4 torn seal and causes transmission fluid to leak,” MTD at 4:13–14; see also Compl. ¶ 6; and (2)

5 “defective ‘software in control of the transmission’ that causes the Transmission Control Module

6 not to ‘communicate properly’ with the Powertrain Control Module,” id. at 3:6–8; see also Compl.

7 ¶ 7. In the relevant paragraphs of the Complaint, Plaintiffs identify the relevant parts—the sealing

8 gasket and multiple control modules. Compl. ¶¶ 6–7. They also identify the symptoms of those

9 alleged defects. Plaintiffs allege that the Sealing Gasket Defect results in “gear slippage, . . .

10 difficulty switching gears, lurching, excess noise from the transmission, a burning smell, and, after

11 sufficient time has passed, even transmission failure.” Id. ¶ 6. Plaintiffs allege that the Software

12 Calibration Defect results in “rough, delayed, or sudden shifting or failure to shift; grinding or

13 other loud noises during shifting; harsh engagement of gears; sudden or harsh

14 accelerations/decelerations; and sudden loss of power.” Id. ¶ 7. The Court finds that these

15 allegations are sufficient to provide “fair notice” to Honda because they “(1) identif[y] the

16 particular part[s] or system[s] affected by the defect, and (2) describe[] the problems allegedly

17 caused by the defect.” Clark v. Am. Honda Motor Co., 528 F. Supp. 3d 1108, 1115 (C.D. Cal.

18 2021) (“Clark I”).

19 Second, Honda argues that a comparison of the operative pleading to the one in Clark

20 shows that the defect pled here is implausible because both complaints “purport to describe

21 different transmission defects in different Honda-branded vehicles,” but the complaint here parrots

22 that defect allegations in Clark. MTD at 5–6. The Court takes from this argument that Honda is

23 implying that Plaintiffs recycled their allegations from Clark, which the Court pointed to as an

24 example of what was sufficient, into this case to try to avoid dismissal. But the Court finds that

25 the better inference to draw is that the allegations in both cases are similar because Honda

26 allegedly has similar issues throughout multiple lines of vehicles. The Court will not penalize

27 Plaintiffs for asserting similar allegations in multiple cases against the same manufacturer. Of

1 ii. Standing to Assert Sealing Gasket Defect

2 Finally, Honda asserts that Plaintiffs have not plausibly alleged that they experienced the

3 Sealing Gasket Defect.2 The Court construes this argument as a challenge to Plaintiffs’ standing

4 to assert claims related to the Sealing Gasket Defect, even though it was not briefed in this

5 manner. See Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002) (“[F]ederal

6 courts are required sua sponte to examine jurisdictional issues such as standing.”).

7 A federal court may not adjudicate a case unless the plaintiff has suffered an injury that

8 satisfies the “case or controversy” requirement of Article III of the United States Constitution. To

9 establish Article III standing, a plaintiff must have suffered an “injury in fact” that is “distinct and

10 palpable;” the injury must be fairly traceable to the defendant's conduct; and the injury must be

11 redressable by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61

12 (1992). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and

13 particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560. Here, there

14 are no allegations that any Plaintiff actually has a vehicle that experienced the Sealing Gasket

15 Defect. This means that no Plaintiff has suffered an “injury in fact” as to the Sealing Gasket

16 Defect. See Lassen v. Nissan N. Am., Inc., 211 F. Supp. 3d 1267, 1279–81 (C.D. Cal. Sep. 30,

17 2016) (no Article III standing where plaintiffs did not plead that they themselves experienced

18 product defect in vehicle). Without such an alleged injury, these Plaintiffs cannot go forward on

19 the claims as to this defect.

20 At the hearing, the Court discussed with the parties whether it should give leave to amend

21 on this issue. 2/3 Hrg. Tr. at 35:7–36:23. Plaintiffs’ counsel requested leave to amend, arguing

22 that this was the first time Plaintiffs had the benefit of the Court’s insight into the sufficiency of

23 their allegations as to the Sealing Gasket Defect. Id. at 35:21–36:2. Plaintiffs’ counsel also

24 represented that if their investigation shows that no Plaintiff experienced the defect, then they

25

26 2 Although this argument was made as part of Honda’s motion to dismiss the claims for breach of

27 express warranty, see MTD at 10–13, the Court finds this issue more appropriate to address in the

1 would drop the theory. Id. at 36:19–21. On this representation, and because the Court is granting

2 Plaintiffs leave to amend on some of their statutory fraud claims, the Court will grant Plaintiffs

3 leave to amend on the Sealing Gasket Defect.

4 Accordingly, Honda’s motion to dismiss based on Plaintiffs’ inadequate pleading of the

5 Sealing Gasket Defect is GRANTED WITH LEAVE TO AMEND. Leave to amend is limited to

6 adding allegations that the vehicle of one or more of the Plaintiffs experienced the Sealing Gasket

7 Defect. If Plaintiffs cannot so allege, they must remove allegations regarding this defect from

8 their amended complaint.

9 B. Implied Warranty Claims

10 Honda next challenges Plaintiffs’ breach of implied warranty claims. MTD at 6–10.

11 Honda makes one argument that applies to all of the implied warranty claims and three arguments

12 that apply only to the Florida, Ohio, and Texas claims. Id. The Court considers the general

13 argument first before examining the Florida, Ohio, and Texas claims.

14 i. Merchantability Allegations

15 First, Honda argues that Plaintiffs do not plead facts showing that their vehicles are

16 unmerchantable. MTD at 6–9. Honda contends that while Plaintiffs plead that their vehicles

17 exhibit a “litany” of issues, no Plaintiff pleads facts supporting the inference that their vehicles are

18 not fit to drive. Id. at 6. Honda looks to each of the Plaintiffs’ allegations about their experience

19 and takes issue with whether the allegations show the vehicles cannot be safely driven. Id. at 6–8.

20 Honda also argues that Plaintiffs have not alleged that they stopped or limited their driving in

21 response to the alleged safety concerns. Id. at 8. Plaintiffs counter that whether their vehicles are

22 merchantable is a question of fact not suitable for resolution on a motion to dismiss, and that each

23 Plaintiff asserts plausible allegations sufficient for the pleading stage on this claim. Opp. at 4–6.

24 The Court agrees with Plaintiffs that their allegations are sufficient at this stage of the case.

25 Plaintiffs’ breach of implied warranty claims are based on state statutes that adopt U.C.C.

26 § 2–314. Accord Clark I, 528 F. Supp. 3d at 1120. U.C.C. § 2–314 provides that “a warranty that

27 the goods shall be merchantable is implied in a contract for sale if the seller is a merchant with

1 fit for the ordinary purposes for which such goods are used.” “The mere manifestation of a defect

2 by itself does not constitute a breach. . . . [T]here must be a fundamental defect that renders the

3 product unfit for its ordinary purpose.” Tietswroth v. Sears, Roebuck & Co., 720 F. Supp. 2d

4 1123, 1142 (N.D. Cal. 2010). But as to vehicle defects, “the ordinary purpose of a car is not just

5 to provide transportation but rather safe, reliable transportation.” In re MyFord Touch Consumer

6 Litig., 46 F. Supp. 3d 936, 980 (N.D. Cal. 2014).

7 As the Court stated in its order dismissing the previous complaint, “[i]f Plaintiffs can

8 adequately allege a defect, it would be difficult for the Court to say as a matter of law that cars

9 suffering from a transmission defect[] in some way are sufficiently safe to be merchantable.”

10 Browning, 549 F. Supp. 3d at 1010. The Court has already found that Plaintiffs have adequately

11 alleged a defect, and it sees no reason to depart from its previous conclusion. Plaintiffs’

12 allegations regarding the results of the alleged defects prevent the conclusion, as a matter of law,

13 that the vehicles were “safe, reliable transportation.” In re MyFord Touch Consumer Litig., 46 F.

14 Supp. 3d at 980. For example, Browning, the Pappases, the Wescotts, and Pina allege that they

15 “cannot predictably accelerate [their] vehicles when turning left across traffic.” SAC ¶¶ 28, 42,

16 53, 89. Boatwright alleges that when he slows down and attempts to reaccelerate, the vehicle

17 often fails to get into gear and when it does, the vehicle lurches. Id. ¶ 65. He also alleges that the

18 transmission independently shifts “such that the vehicle gains too much speed while going

19 downhill,” forcing him to “aggressively break in order to avoid a collision.” Id. Yong alleges that

20 he experiences shifting problems at approximately 30 miles per hour, making it “difficult for [him]

21 to drive at residential speeds.” Id. ¶ 78. Other courts have found similar inability to predict

22 behavior of the transmission sufficient to allege claims for breach of warranty. See Gregorio v.

23 Ford Motor. Co., 522 F. Supp. 3d 264, 291 (E.D. Mich. 2021) (plausible claim of

24 unmerchantability where vehicle’s transmission allegedly had “gears slipping, jerking, and

25 clashing” and caused “the inability to shift into certain gears” because “they affect the driver’s

26 ability to control the vehicle’s acceleration and deceleration”); Parrish v. Volkswagen Grp. of Am.,

27 Inc., 463 F. Supp. 3d 1043, 1065 (C.D. Cal. 2020) (plausible claim of unmerchantability where

1 for the driver and other motorists).

2 Because the Court cannot conclude as a matter of law that Plaintiffs’ vehicles were

3 merchantable if their allegations are true, the Court DENIES the motion to dismiss the breach of

4 implied warranty claims on this ground.

5 ii. Florida – Claim 2

6 The second claim in the SAC—asserted by Plaintiff Browning—is for breach of implied

7 warranty under Florida law. See SAC ¶¶ 177–194. As Honda argues, the Court previously

8 dismissed this claim without leave to amend due to the lack of privity between her and Honda.

9 See Browning, 549 F. Supp. 3d at 1010–11 (“[T]he Court DISMISSES [Browning’s] claim for

10 breach of implied warranty WITH PREJUDICE.”). This claim cannot be reasserted, so Honda’s

11 motion to dismiss the claim is GRANTED WITHOUT LEAVE TO AMEND.

12 iii. Ohio – Claim 4

13 The Pappases assert the fourth claim in the SAC for breach of the implied warranty of

14 merchantability under Ohio law. See SAC ¶¶ 216–233. For implied warranty claims under Ohio

15 law, privity with the seller is required under Ohio Rev. Code § 1302.27(A). Curl v. Volkswagen of

16 Am., Inc., 871 N.E.2d 1141, 1147 (Ohio 2007) (“[P]urchasers of automobiles may assert a contract

17 claim for breach of implied warranty only against parties with whom they are in privity.”). Honda

18 argues that, as the Court agreed in the previous motion to dismiss, the Court should dismiss this

19 claim for lack of privity between Honda and the Plaintiffs, who purchased their vehicles from

20 authorized dealers. MTD at 9–10. Honda argues that the additional allegations Plaintiffs have

21 added regarding the existence of the express warranty and agency or third-party beneficiary

22 relationships do not change the previous decision the Court reached. Id. Plaintiffs argue that

23 those two sets of allegations and their reliance on Honda’s advertisements negate the need to show

24 privity. Opp. at 7–8. The Court considers each of Plaintiffs’ arguments in turn and concludes that

25 the claim must be dismissed.

26 First, Plaintiffs argue that they can satisfy the privity requirement by proving the existence

27 of an express limited warranty. Opp. at 7–8. The cases Plaintiffs cite for that proposition,

1 Monostable Elec. Gearshift Litig., 355 F. Supp. 3d 582, 596 (E.D. Mich. 2018), and Francis v.

2 Gen. Motors, LLC, 504 F. Supp. 3d 659, 677 (E.D. Mich. 2020), both cite without analysis a

3 single Ohio district court case—Roxy Home Improvement, LLC v. Mercedes-Benz USA, LLC,

4 2018 WL 1705800 (N.D. Ohio Apr. 9, 2018). But that case involved an implied warranty in tort,

5 not in contract, and the Court has already concluded that the Pappases assert a claim for implied

6 warranty in contract. Browning, 549 F. Supp. 3d at 1011. Plaintiffs provide no authority allowing

7 them to bootstrap a contract-based implied warranty claim onto an express written warranty under

8 Ohio law, and the Court is not aware of any. Accord Short v. Hyundai Motor Co., 444 F. Supp. 3d

9 1267, 1286 (W.D. Wash. 2020) (“Plaintiffs cite to no Ohio state law authority, and the court is

10 aware of none, under which the mere presence of a written warranty overcomes the privity

11 requirement for a claim for breach of an implied warranty.”).

12 Second, Plaintiffs contend that there is an exception to Ohio privity requirements for

13 agency or third-party beneficiary relationships. MTD at 8. The Court disagrees. “Curl stands for

14 the well-accepted principle that there is no privity between a vehicle’s manufacturer and the

15 ultimate consumer because the dealer, generally, does not act as the manufacturer’s agent.”

16 Nicholson v. Jayco, 2016 WL 5463215, at *17 (N.D. Ohio Sep. 29, 2016); see also Hartman v.

17 Mercedes-Benz, U.S.A., L.L.C., 2010 WL 907969, at *6 (N.D. Ohio Mar. 11, 2020) (agency

18 allegations in vehicle product defect cases describe “customary practices in automobile sales and

19 manufacturing”).3 As Honda states, if there was an exception to the privity requirement where

20 parties were in an agency relationship, the strict privity requirement would be swallowed by this

21 exception in every automobile case. Accordingly, the alleged exception to the rule in Bobb Forest

22 Prod., Inc. v. Morbark Indus., Inc., 783 N.E.2d 560, 576 (Ohio App. 2002)—a case involving an

23 implied warranty claim against the manufacturer of a sawmill in which the manufacturer knew it

24

25 3 For this reason, the Court finds that Wilson v. Volkswagen Grp. of Am., Inc., 2018 WL 4623539

26 (S.D. Fla. Sep. 26, 2018), cited by Plaintiffs for the proposition that an Ohio car buyer can be in

27 privity with an upstream manufacturer, is out-of-step with the weight of Ohio authority. The

1 was manufacturing the sawmill for the particular downstream customer—has been limited to those

2 facts by other courts, including in vehicle defect cases. See, e.g., Rollolazo v. BMW of N. Am.,

3 LLC, 2017 WL 1536456, at *16 (C.D. Cal. Feb. 3, 2017) (distinguishing Bobb Forest because the

4 car manufacturer did not know it was manufacturing a particular car for a particular Ohio

5 customer); accord McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 758 (N.D. Ohio 2010) (“[T]he

6 Court declines to extend the limited privity exception articulated in Bobb Forest beyond the facts

7 of that case.”).

8 Third and finally, Plaintiffs contend there is an exception to the privity requirement “when

9 the plaintiff relies on written labels or advertisements of a manufacturer.” Opp. at 8 (citing In re

10 Rust-Oleum Restore Mktg. Sales Practices & Prod. Liab. Litig., 155 F. Supp. 3d 772, 807 (N.D.

11 Ill. 2016)). But as Honda says, that case did not cite any Ohio law for that proposition, and the

12 cases it relies upon cite only California cases. See Clemens v. DaimlerChrysler Corp., 534 F.3d

13 1017, 1023 (9th Cir. 2008) (citing Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 696 (Cal. 1954)).

14 Without Ohio law supporting application of this purported exception, the Court will not apply it.

15 Accordingly, Plaintiffs have not sufficiently alleged privity between the Pappases and

16 Honda under Ohio law. Because the Court identified this deficiency in the order on the prior

17 motion to dismiss, Browning, 549 F. Supp. 3d at 1011, the instant motion to dismiss the Ohio

18 claim for breach of implied warranty is GRANTED WITHOUT LEAVE TO AMEND.

19 iv. Texas – Claim 9

20 Yong asserts the ninth claim in the SAC for breach of implied warranty under Texas law.

21 SAC ¶¶ 322–340. The Court previously dismissed the claim with leave to amend for failure to

22 allege pre-suit notice. Browning, 549 F. Supp. 3d at 1011. Honda argues that Yong has still failed

23 to plead that he made proper pre-suit notice. MTD at 9. Plaintiffs argue that Yong satisfied pre-

24 suit notice when he (1) brought his vehicle to the dealership and complained of the defects, and (2)

25 sent a pre-suit notice letter under Texas law on December 12, 2020, eight months before filing the

26 SAC. Opp. at 7.

27 The Court finds that Yong’s allegations do not satisfy the pre-suit notice requirement under

1 visit to the dealership and his pre-suit notice letter sent three days before he joined this case as a

2 plaintiff—are the same ones as were in the First Amended Complaint, which the Court found

3 insufficient to satisfy the requirement. Compare FAC ¶ 83 (Yong taking vehicle to dealer), with

4 SAC ¶ 79 (identical paragraph); and FAC ¶ 342 (describing letter dated December 12, 2020), with

5 SAC ¶ 339 (materially similar paragraph). The Court’s conclusion has not changed. Neither the

6 dealership visit nor the untimely letter would sufficiently give Honda notice “an opportunity to

7 cure” the alleged defects. McKay v. Novartis Pharma. Corp., 751 F.3d 694, 705 (5th Cir. 2014).

8 Speaking with unspecified individuals at the dealership is not sufficient to ensure that Honda

9 itself, the defendant here, was “informed that there is a claimed breach of the warranty of fitness.”

10 Id. at 705–06. Neither does the letter—sent only three days before Yong joined the case in the

11 First Amended Complaint—give Honda sufficient notice and an opportunity to cure. Yong’s

12 assertion that the letter preceded the Second Amended Complaint by eight months is a red herring.

13 Yong has thus failed to adequately allege pre-suit notice as required under Texas law.

14 Because this defect was also identified in the prior order, Browning, 549 F. Supp. 3d at 1011, the

15 motion to dismiss the claim for breach of implied warranty under Texas law will be GRANTED

16 WITHOUT LEAVE TO AMEND.

17 C. Express Warranty Claims

18 Honda next challenges the adequacy of Plaintiffs’ pleading for their claims for breach of

19 express warranty. MTD at 10–14. The Court considers Honda’s three4 arguments in turn: first,

20 that the claim for breach of express warranty under Texas law fails to lack of pre-suit notice;

21 second, that the Software Calibration Defect is actually a design defect that is not covered by the

22 express warranty at issue; and third, that Plaintiffs have not pled facts demonstrating a refusal to

23 repair.

24

25

26 4 The Court has already addressed Honda’s additional argument that Plaintiffs have not adequately

27 pled that they experienced the Sealing Gasket Defect and found that it presents an Article III

1 i. Texas – Claim 9

2 The ninth claim in the SAC is for breach of express warranty under Texas law. SAC

3 ¶¶ 322–339. This claim also required Yong to provide Honda with pre-suit notice. See McKay,

4 751 F.3d at 705 (citing Tex. Bus. & Com. Code § 2.607(c)(1)). The Court has already found

5 Yong’s allegations of pre-suit notice insufficient for his breach of implied warranty claim. See

6 supra Section III.B.iv. That analysis applies equally here. Because Yong has not adequately

7 alleged pre-suit notice, as the Court’s prior order required, the motion to dismiss the Texas claim

8 for breach of express warranty is GRANTED WITHOUT LEAVE TO AMEND.

9 ii. Software Calibration Defect

10 First, Honda argues that the Software Calibration Defect, which Plaintiffs assert is a

11 manufacturing defect, is actually a design defect. MTD at 11–12. This matters because if the

12 Software Calibration Defect is actually a design defect, it is not covered by the written warranties

13 at issue in this case. Browning, 549 F. Supp. 3d at 1011 (“The Court agrees with [Honda] that

14 design defects are not covered by these types of warranties.”) (citing Troup v. Toyota Motor

15 Corp., 545 F. App’x 668–69 (9th Cir. 2013)).

16 The Court finds that, as pled, the Software Calibration Defect is a manufacturing defect.

17 Plaintiffs plead that there is “improper design and/or calibration of the software in control of the

18 [T]ransmission,” including both the Transmission Control Module and the Powertrain Control

19 Module. SAC ¶ 7. While the Transmission may be delivered by a component manufacturer,

20 Plaintiffs allege that “it is the responsibility of [Honda] to ensure that the software is properly

21 calibrated for use in its vehicles.” Id. Plaintiffs thus allege that this defect—the improper

22 calibration of the software in control of the modules—is a “workmanship” defect that occurs after

23 Honda receives the Transmission and, during the manufacturing process, calibrates it to work

24 properly for their vehicles. SAC ¶¶ 8, 136.

25 To be sure, the Court recognizes Honda’s concern that letting both defects proceed opens

26 up Honda to additional discovery. It may turn out that Honda’s software calibration of the

27 transmission control modules is performed pursuant to specifications such that the improper

1 specifications” and is thus a design defect. See Brothers v. Hewlett Packard Co., 2007 WL

2 485979, at *4 (N.D. Cal. Feb. 12, 2007) (“Unlike defects in materials or workmanship, a design

3 defect is manufactured in accordance with the product’s intended specifications.”). But the Court

4 cannot say based solely on Plaintiffs’ pleading that this is the case.

5 For now, the Court finds that Plaintiffs have plausibly pled that the Software Calibration

6 Defect is a manufacturing defect, and thus DENIES Honda’s motion to dismiss on this ground.

7 Plaintiffs are on notice that if discovery reveals that this defect exists due to the Odyssey’s

8 specifications, it will be a design defect for which they cannot sustain a breach of express warranty

9 claim.

10 iii. Refusal to Repair Allegations

11 Honda’s next argument against Plaintiffs’ breach of express warranty claim is that

12 Plaintiffs have not adequately pled a refusal to repair. MTD at 13–14. This argument is of two

13 parts. First, Honda says that Boatwright has not adequately alleged a refusal to repair because he

14 only brought his vehicle into the dealer one time. See id. at 13. Second, Honda says that

15 Boatwright, Yong, and Pina have not pled a refusal to repair because they do not plead that the

16 dealers identified a problem and refused to repair it. See id. at 13–14. Plaintiffs counter by

17 defending the sufficiency of their allegations. See Opp. at 11–12.

18 The Court agrees with Honda, and has already held, that more than one presentation to the

19 dealer is required to plead a refusal to repair. Browning, 549 F. Supp. 3d at 1012 (“All Plaintiffs

20 will, at a minimum, need to plead that they brought their Class Vehicles in for repair more than

21 once.”) (citing Clark I, 528 F. Supp. 3d at 1117–18). Boatwright has not done so. He alleges only

22 that he “returned the vehicle to the dealership within three months of his purchase” and was

23 informed that it was operating normally. SAC ¶ 66. Plaintiffs provide no authority for their

24 argument that his call to the customer service hotline counts as a “repair presentation,” and their

25 argument that further visits would have been futile has been roundly rejected by courts. See Clark

26 v. Am. Honda Motor Co., 2021 WL 4260232, at *4 (C.D. Cal. Sep. 14, 2021) (“Clark II”) (citing

27 Stockinger, 2017 WL 10574372, at *7).

1 to repair a vehicle when it does not identify a problem. It would be too easy to avoid warranty

2 claims if a dealer could merely deny that it identified a problem even if there were symptoms of it.

3 Here, for Yong and Pina’s vehicles, the dealers acknowledged issues during test drives. Yong

4 brought his vehicle into dealerships twice, and at one of the visits the “service technicians

5 acknowledged” the “jerking and rough or delayed shifting at low speeds” during a test drive. SAC

6 ¶ 79. Pina’s allegations, although slightly different, also suffice. Pina brought his vehicle into the

7 dealership four times. On one of those visits, the dealership conducted a test drive and “refused to

8 make note of [Pina’s] complaints regarding the “delayed acceleration, hesitation, and hard

9 jerking.” Id. ¶ 90. Honda’s citations to Clark II and Cadena v. Am. Honda Motor Co., Inc., 2018

10 WL 8130613, at *7 (C.D. Cal. Nov. 14, 2018), are unpersuasive because in those cases the dealers

11 did not experience the problems of which the plaintiffs complained. See Clark II, 2021 WL

12 4260232, at *3 (dealership “could not identify the issues during a single presentation despite doing

13 tests in some cases”); Cadena, 2018 WL 8130613, at *7 (dealership “could not duplicate the

14 alleged issue”). Plaintiffs’ allegations support a plausible inference of a refusal to repair.

15 Accordingly, Honda’s motion to dismiss Boatwright’s breach of express warranty claim is

16 GRANTED WITHOUT LEAVE TO AMEND. Accord Clark II, 2021 WL 4260232, at *4

17 (dismissing express warranty claims without leave to amend where plaintiffs were provided a

18 chance to amend to add additional allegations about repair presentations and refusal to repair).

19 Honda’s motion to dismiss Yong and Pina’s breach of express warranty claims is DENIED.

20 D. Consumer Protection Claims

21 Plaintiffs assert four claims under the consumer protection statutes in Florida, Ohio, Texas,

22 and California. See SAC ¶¶ 168–176 (Florida Deceptive and Unfair Trade Practices Act); ¶¶ 195–

23 215 (Ohio Consumer Sales Practices Act); ¶¶ 282–294 (Texas Deceptive Trade Practices-

24 Consumer Protection Act); ¶¶ 341–355 (California Consumer Legal Remedies Act). These claims

25 are based on Honda’s alleged fraud by omission. A claim for fraud by omission requires that:

26 (1) the defendant must have concealed or suppressed a material fact;

(2) the defendant must have been under a duty to disclose the fact to

27 the plaintiff; (3) the defendant must have intentionally concealed or

if he had known of the concealed or suppressed fact; and (5) as a result

1 of the concealment or suppression of the fact, the plaintiff sustained

damage.

2

3 Browning, 549 F. Supp. 3d at 1012 (citing Clark I, 528 F. Supp. 3d at 1122).

4 Honda moves to dismiss these claims on several grounds. One of those arguments is

5 specific to the Ohio claim and the others apply to all of the consumer protection claims. See MTD

6 at 14–23.

7 i. Ohio – Claim 3

8 The Court first addresses Honda’s argument that is specific to the Ohio consumer

9 protection claim. Honda argues that the Ohio claim is untimely because the Ohio statute has a

10 strict two-year statute of limitations. MTD at 23. Because the Pappases bought their Odyssey

11 more than two years before filing suit, the claim is time-barred, Honda says. Id. Plaintiffs

12 respond that the Ohio statute is triggered by the occurrence of a violation, not the date of a

13 “consumer transaction” as defined under the statute. Opp. at 24–25. The Court agrees with

14 Honda.

15 The Ohio Consumer Protection Act has a two-year statute of limitations. See Ohio Rev.

16 Code Ann. 1345.10(C). This statute of limitations is “absolute” and is not subject to tolling or the

17 discovery rule. See Gerstle v. Am. Honda Motor Co., Inc., 2017 WL 2797810, at *10 (N.D. Cal.

18 Jun. 28, 2017) (citing Zaremba v. Marvin Lumber & Cedar Co., 458 F. Supp. 2d 545, 552 (N.D.

19 Ohio 2006). The Pappases allege that they purchased their vehicle on March 6, 2018, see SAC

20 ¶ 38, but this lawsuit was not filed until August 5, 2020, more than two years later. The claim is

21 thus time-barred.

22 Plaintiffs argue that the Ohio statute is “triggered by the occurrence of a violation, not the

23 date of sale or purchase” of the good at issue, and so post-sale deceptive conduct can suffice. See

24 Opp. at 24. They rely on language in the statute that prohibits deceptive conduct “in connection

25 with a consumer transaction,” and argue that the July 2019 visit the Pappases made to the dealer in

26 which the dealership claimed that the vehicle was “OPERATING AS DESIGNED” was “in

27 connection with” the March 2018 purchase of their vehicle. See id. at 25 (citing SAC ¶ 43). As an

1 of purchase, not at the time of repairs. See, e.g., SAC ¶ 208 (Pappases “would not have purchased

2 or leased the vehicles” had they known about alleged defects). But even so, Plaintiffs provide no

3 Ohio case authority for the proposition that a repair visit over one year after the transaction at

4 issue—the Pappases purchase of their Odyssey—is fairly characterized as “in connection” with

5 that transaction.5 The Court declines to stretch the Ohio statute and the “absolute” statute of

6 limitations without such authority. The claim is thus barred by the statute of limitations, and

7 Honda’s motion to dismiss the claim is GRANTED WITHOUT LEAVE TO AMEND.

8 ii. Rule 9(b)

9 Honda’s other arguments against the consumer protection claims come under the umbrella

10 of Rule 9(b). When a party pleads a cause of action for fraud or mistake, it is subject to the

11 heightened pleading requirements of Rule 9(b). “In alleging fraud or mistake, a party must state

12 with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Malice,

13 intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Id. Rule

14 9(b) demands that the circumstances constituting any alleged fraud be plead “specific[ally] enough

15 to give defendants notice of the particular misconduct . . . so that they can defend against the

16 charge and not just deny that they have done anything wrong.” Kearns v. Ford Motor Co., 567

17 F.3d 1120, 1124 (9th Cir. 2009) (internal citation omitted). Claims of fraud must be accompanied

18 by the “who, what, when, where, and how” of the misconduct alleged. Cooper v. Pickett, 137

19 F.3d 616, 627 (9th Cir. 1997), superseded by statute on other grounds (internal citation omitted).

20 The parties agree that all of the consumer protection claims are subject to Rule 9(b). See

21 Opp. at 13 (contending that “[t]he allegations in Plaintiffs’ SAC satisfy Rule 9(b)”). With that

22 legal standard in mind, the Court proceeds to analyze Honda’s arguments.

23 a. American Honda Motor Co. and Honda Motor Co.

24 Honda first attacks the particularity of Plaintiffs’ allegations concerning the distinct

25

26 5 In re Volkswagen Timing Chain Prod. Liab. Litig., 2017 WL 1902160, at *26 (D.N.J. May 8,

27 2017), cited by Plaintiffs, did not consider whether a later repair visit is “in connection with” the

1 defendants here. Plaintiffs have not, Honda says, responded to the Court’s admonishment that

2 they “must distinguish what action [American Honda Motor Co. (“AHM”)] took from what action

3 [Honda Motor Co. (“HMC”)] took in the alleged fraud.” Browning, 549 F. Supp. 3d at 1012.

4 Honda says that the SAC only alleges the distinct responsibilities of the corporate entities without

5 delineating their roles in the specific fraud alleged in the complaint. See MTD at 15–17. Plaintiffs

6 agree that they provided additional detail about the corporate roles and functions of the two

7 entities, but say that they added more allegations about AHM’s role as the “primary source of

8 information to consumers regarding the class vehicles.” See Opp. at 14–15.

9 The Court finds that Plaintiffs have alleged sufficient facts about each defendant for

10 purposes of Rule 9(b). Plaintiffs have further specified the different roles of each of AHM and

11 HMC. AHM was responsible for “marketing, distributing, servicing, and selling” Honda

12 automobiles in the relevant states; “distribut[ing] all technical materials drafted by [HMC];”

13 “oversee[ing] certain automobile product design and market research functions;” and “draft[ing]

14 . . . the [window] stickers” on Honda vehicles. SAC ¶ 97. AHM is alleged to be the “primary

15 source of information to consumers” about the Odyssey vehicles; through its website, it “broadly

16 disseminates information regarding the characteristics, benefits, and quality” of the Odyssey

17 vehicles. Id. ¶ 111. It also controls the information that Honda dealerships provide to the public.

18 Id. ¶ 112; see also id. ¶¶ 114–119. AHM also circulates technical service bulletins to its

19 dealerships. Id. ¶ 113. HMC, in contrast, “designs, manufacturers, and distributes” both vehicles

20 and parts for Honda vehicles. SAC ¶ 98. “[T]he design and manufacture of Class Vehicles,

21 including their component systems and any repairs or service necessary, is the primary focus of

22 HMC.” Id. HMC also “drafts all technical materials to be distributed by [AHM]” and has

23 “substantial control over the business operations of [AHM], particularly with regards to the

24 communications [AHM] distributes on HMC’s behalf.” Id. The Court finds that these allegations

25 are sufficient at this stage of the case. See Friedman v. Zimmer, 2015 WL 6164787, at *2 (C.D.

26 Cal. Jul. 10, 2015) (“Before discovery, Plaintiff has no reasonable means of determining the roles

27 that the [] Defendants played . . . .”); see also Kearney v. Bayerische Motoren Werke

1 achieved some level of differentiation among Defendants by specifying their corporate

2 relationship, location, and respective responsibilities.”).6

3 b. Specificity of Omissions Allegations

4 Honda next challenges the allegations supporting the first element of a fraud by omission

5 claim—whether Honda “concealed or suppressed a material fact.” See MTD at 17–22. Honda

6 says that Plaintiffs have failed to describe what information was not disclosed and where the

7 information should have been made available to Plaintiffs. Id. Plaintiffs counter by pointing to

8 allegations they say sustain their claims at this stage of the case. See Opp. at 15–23.

9 The proper legal standard applicable to the specificity of the omissions was the subject of

10 much discussion at the hearing on this motion. Honda urges that the Court apply the standard

11 from Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009), as articulated in Sims v. Kia

12 Motors Am., Inc., 2014 WL 12558251 (C.D. Cal. Oct. 8, 2014). This requires Plaintiffs to

13 “‘describe the content of the omission and where the omitted information should or could have

14 been revealed.’” Sims, 2014 WL 12558251, at *4 (C.D. Cal. Oct. 8, 2014) (quoting Marolda v.

15 Symantec Corp., 672 F. Supp. 2d 992, 1002 (N.D. Cal. 2009)); see also Heber v. Toyota Motor

16 Sales U.S.A., Inc., 2018 WL 3104612, at *6 (C.D. Cal. Jun. 11, 2018), aff’d in relevant part, 823

17 F. App’x 512, 515 (9th Cir. 2020) (insufficient to “merely state in conclusory fashion that Toyota

18 fraudulently failed to disclose the defect”). In Honda’s view, this standard also requires Plaintiffs

19 to plead more than just that Honda should have disclosed the defect. MTD at 17–18. Plaintiffs

20 must plead the exact words of what Honda should have disclosed and a precise location where

21

22 6 The decisions Honda cites in reply are distinguishable because the operative complaints in those

23 cases had far less detail. For example, in Zakikhan v. Hyundai Motor Co., 2021 WL 4805454, at

24 *8 (C.D. Cal. Jun. 28, 2021), the operative complaint referred to the two Hyundai entities as

25 “Hyundai” and the two Kia entities as “Kia” throughout the pleading. See also Drake v. Toyota

26 Motor Corp., 2020 WL 7040125, at *10–11 (C.D. Cal. Nov. 23, 2020) (“Plaintiffs almost

27 exclusively refer to Defendants collectively as ‘Toyota.’”). Plaintiffs do not do so here, describing

1 they should have disclosed it, Honda says. Id.

2 Plaintiffs disagree. While they do not appear to contest that Kearns provides the general

3 Rule 9(b) standard, they point the Court to cases stating that a fraud by omission claim “can

4 succeed without the same level of specificity required by a normal fraud claim” because “requiring

5 a plaintiff to identify (or suffer dismissal) the precise time, place, and content of an event that (by

6 definition) did not occur would effectively gut state laws prohibiting fraud-by-omission.” Opp. at

7 13 (quoting In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs., & Prod. Liab.

8 Litig., 754 F. Supp. 2d 1145, 1189 (C.D. Cal. 2010)). Plaintiffs also provided the Court with

9 multiple cases holding that plaintiffs need not identify with precise words or point to specific

10 advertisements in which the alleged omissions should have appeared in vehicle defect cases. See

11 2/3 Hrg. Tr. at 21:14–22:10 (citing Daniel v. Ford Motor Co., 806 F.3d 1217, 1226 (9th Cir.

12 2015), and Sloan v. Gen. Motors LLC, 287 F. Supp. 3d 840 (N.D. Cal. 2018) (“Sloan II”), among

13 other cases).

14 Defendants are correct that Kearns—itself a case regarding representations made in the

15 course of selling vehicles—provides the general governing standard for Rule 9(b) claims. Kearns,

16 for example, faulted the plaintiff for not specifying what materials he was exposed to or relied

17 upon for his purchase, who made certain representations to him about the subject vehicles, and

18 when he was exposed to certain representations. Kearns, 567 F.3d at 1126. But district court

19 decisions post-Kearns provide important examples of application of that doctrine, particularly

20 regarding omissions claims in vehicle defect cases like this one. Kearns itself is not the end of the

21 inquiry.

22 Although the Court cited Sims and Marolda for a general proposition of law in its previous

23 order, see Browning, 549 F. Supp. 3d at 1012, on further review, the Court finds the analysis in

24 Sloan II to be instructive as to the applicable legal standard here. In Sloan II, the plaintiffs alleged

25 that the Gen IV Vortec 5300 engine—installed in multiple vehicle models manufactured by

26 General Motors—consumed excess amounts of oil, resulting in engine damage that presented a

27 risk of sudden engine shutdowns or fires. Sloan II, 287 F. Supp. 3d at 851. Plaintiffs identified

1 asserted fraud and consumer protection claims under multiple states’ laws. Id. at 864–65. GM

2 argued that the plaintiffs’ pleading did not satisfy Rule 9(b) because it did not identify particular

3 advertisements or provide specific wording of what GM should have disclosed, citing the Marolda

4 language that Honda has cited in this case. Id. at 877–78. Judge Chen rejected these arguments.

5 “[A] plaintiff in alleging an omission-based fraud claim will not be able to specify the time, place,

6 and specific content of an omission as would a plaintiff in a false representation action.” Id. at 877

7 (quoting MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1096 (N.D. Cal. 2014)). Instead,

8 plaintiffs only needed to allege that they “would have received the information in some way had

9 [d]efendant exercised reasonable care.” Id. at 877–78 (citing Daniel, 806 F.3d at 1226).

10 Plaintiffs’ pleading in Sloan II was sufficient, Judge Chen held, because it identified the “who”

11 (GM), the “what” should have been disclosed (the Oil Consumption Defect), the “when” (prior to

12 the sale of class vehicles), and the “where” (“the channels of information through which Ford sold

13 Class Vehicles”).7 Id.

14 Judge Chen specifically rejected GM’s argument that Marolda provided the proper

15 standard. Marolda was distinguishable, the court held, because the plaintiff had said that one

16 particular advertisement was misleading but “failed to include any identifying information about

17 that advertisement or its purported omissions in the complaint.” Id. Judge Chen noted that

18 “[v]irtually every court to consider of Marolda” in vehicle defect cases asserting omission claims

19 “has rejected its applicability” because it concerned a single specific advertisement. Id. (citing

20 MacDonald, 37 F. Supp. 3d at 1096; Philips v. Ford Motor Co., 2015 WL 4111448, at *12 (N.D.

21 Cal. 2015); and Velasco v. Chrysler Grp. LLC, 2014 WL 4187796, at *3 (C.D. Cal. Aug. 22,

22 2014)). Furthermore, both Sims and Marolda pre-date the Ninth Circuit’s opinion in Daniel,

23 which provided further clarification that the focus in omissions claims is “on the defendant’s

24

25 7 A subset of the plaintiffs in Sloan II had not purchased their vehicles through dealerships and

26 failed to allege that they would have received information about the Oil Consumption Defect (had

27 it been disclosed). Id. That issue is not present here because each Plaintiff has alleged that they

1 opportunity to disseminate the information to the plaintiff[s], not whether the plaintiff[s] ha[ve] in

2 fact viewed any advertisements.” See Sloan II, 287 F. Supp. 3d at 878 (citing Daniel, 806 F.3d at

3 1226).

4 The Court agrees with multiple courts in this district that have applied the legal framework

5 outlined in Sloan II to fraudulent omission claims in vehicle defect cases. See In re Toyota RAV4

6 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1097 (N.D. Cal. 2021); Baranco v. Ford Motor

7 Co., 294 F. Supp. 3d 950, 969 (N.D. Cal. 2018). Looking to Plaintiffs’ amended pleading, the

8 Court finds that it now meets that standard. Plaintiffs have sufficiently identified the “what” and

9 “where” of the purportedly omitted information. On the “what,” the Court has already found that

10 Plaintiffs have now adequately pled the alleged defects and symptoms that they say should have

11 been disclosed to them at the time of purchase. See supra Section III.A; see also SAC ¶¶ 110

12 (Honda “failed to disclose that the Class Vehicles’ [Transmission] contained defects that caused

13 the [T]ransmissions to exhibit rough, delayed, or sudden shifting or failure to shift; grinding or

14 other loud noises during shifting; harsh engagement of gears; sudden or harsh

15 accelerations/decelerations; and sudden loss of power”). On the “where,” Plaintiffs have

16 identified a number of outlets through which Honda releases information in which it could have

17 disclosed the defects. See SAC ¶ 155 (identifying marketing, “such as press releases, public

18 comments, commercials, and vehicle brochures,” window stickers, and through personnel at

19 authorized dealerships8). Plaintiffs have alleged that they viewed these materials and would have

20 been exposed to any disclosure in them prior to purchase. See, e.g., SAC ¶ 26 (Browning

21

22 8 The Court need not resolve whether an opportunity for disclosure through personnel at

23 dealerships is relevant under each state’s law because the other sources of information Plaintiffs

24 allege would be sufficient to sustain their claims. Compare MTD at 18 (citing cases about general

25 agency principles between parent companies and dealerships), with Sloan II, 287 F. Supp. 3d at

26 875 (finding adequate allegations to infer an agency relationship between parent company and

27 dealership such that interactions with dealerships were an opportunity through which omitted

1 researched the Odyssey online at both the dealership and manufacturer’s websites, reviewed the

2 window sticker, and spoke with a sales representative at the dealer during a test drive); id. ¶¶ 40,

3 51, 63, 76, 87 (similar allegations for the other Plaintiffs). This information is more than

4 sufficient to plausibly allege that Plaintiffs would have “had the opportunity to receive” the

5 omitted information. See Sloan II, 287 F. Supp. 3d at 874–75 (citing Daniel, 806 F.3d at 1225–

6 26).

7 Plaintiffs have thus satisfied Rule 9(b) with respect to specificity of their omissions

8 allegations.

9 c. Duty to Disclose – Exclusive Knowledge and Active Concealment

10 Honda next presents two arguments that go to whether Honda had a duty to disclose the

11 defects to Plaintiffs. A duty to disclose may arise “(1) when the defendant is in a fiduciary

12 relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts

13 not known to the plaintiff; (3) when the defendant actively conceals a material fact from the

14 plaintiff; and (4) when the defendant makes partial representations but also suppresses some

15 material fact.” Sloan II, 287 F. Supp. 3d at 865 (quoting LiMandri v. Judkins, 52 Cal. App. 4th

16 326, 337 (1997)). No party alleges that the first circumstance arises, but Honda contests that any

17 of the other three theories apply. See MTD at 19–22 (exclusive knowledge), 22 (active

18 concealment), 23 (partial representation). Plaintiffs argue that theories two and three—exclusive

19 knowledge and active concealment—are adequately pled. Opp. at 17–23 (exclusive pre-sale

20 knowledge), 23–24 (active concealment); see also id. at 24 n.2 (conceding that no partial

21 representation theory is alleged). The Court will accordingly evaluate whether the SAC pleads

22 facts sufficient to find a duty to disclose under exclusive knowledge or active concealment

23 theories of a duty to disclose.9

24

25 9 The parties do not frame the active concealment and partial representation inquiries as part of

26 whether Honda had a duty to disclose, but the cases they cite do. See, e.g., Herron v. Best Buy,

27 924 F. Supp. 2d 1161, 1176–77 (E.D. Cal. 2013) (case cited by Honda discussing active

1 1. Knowledge of Material Facts

2 Honda first argues that Plaintiffs have not pled facts to support a finding that it had

3 “exclusive knowledge” of the alleged defects. See MTD at 19–22. Plaintiffs say that they have

4 amended their complaint to address the deficiencies the Court identified in its order dismissing the

5 First Amended Complaint. Opp. at 17–23.

6 In its order dismissing the First Amended Complaint, the Court held that Plaintiffs had not

7 pled Honda’s pre-sale knowledge of the defects. Browning, 549 F. Supp. 3d at 1012–13.

8 “Because Plaintiffs have failed to adequately plead a defect, they have necessarily failed to plead

9 exactly what [Honda] had knowledge of concerning the Class Vehicle.” Id. The Court further

10 noted that Plaintiffs had not alleged that Honda was aware of the online complaints they alleged,

11 and that post-sale complaints to NHTSA could not support pre-sale knowledge. Id. (citing In re

12 Nexus 6P Prods. Liab. Litig., 293 F. Supp. 3d 888, 908–09 (N.D. Cal. 2018)).

13 Plaintiffs allege five possible sources of Honda’s exclusive knowledge10 of the defects:

14 testing of both predecessor vehicles and pre-release Class Vehicles; consumer complaints made to

15 Honda and posted online; complaints filed with the NHTSA; technical services bulletins

16 (“TSBs”); and dealership repair orders. SAC ¶¶ 121–122. The Court evaluates each piece of

17 evidence in turn.

18 Pre-Sale Testing. The Court finds that Plaintiffs’ allegations of pre-sale testing do not

19

20 US LLC, 2016 WL 6441518, at *7 (S.D. Cal. Nov. 1, 2016) (cased cited by Plaintiffs doing the

21 same). The Court will accordingly analyze those arguments under a duty to disclose.

22 10 Plaintiffs are correct that some courts “have not defined ‘exclusive’ literally,” and have instead

23 found a duty to disclose “if the defendant had ‘superior’ knowledge of a defect that was not

24 readily apparent and there is no or only . . . limited publicly available information about the

25 defect.” Mosqueda v. Am. Honda Motor Co., 443 F. Supp. 3d 1115, 1133 (C.D. Cal. Mar. 6,

26 2020) (quoting Salas v. Toyota Motor Sales, U.S.A., Inc., 2016 WL 7486600, at *10 (C.D. Cal.

27 Sep. 27, 2016)). The Court’s conclusions in this section are not affected by the level of

1 plausibly plead exclusive knowledge. Plaintiffs’ allegations about the knowledge Honda gained

2 from the testing are improperly couched; Plaintiffs allege that Honda “knew or should have

3 known” about the defects through data from other vehicles and pre-release testing that it

4 performed on the Odyssey vehicles at issue here. SAC ¶ 123 (“[F]rom testing at these facilities,

5 [Honda] knew or should have known that the subject Transmissions were defective . . . .”). As

6 Honda argues, because Plaintiff’s theory is grounded in fraud, “should have known” is not

7 sufficient for liability. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1145 (9th Cir. 2012)

8 (plaintiff must allege that defendant “was aware” of a defect at the time of sale for exclusive

9 knowledge). Plaintiffs must allege that Honda knew of the specific defects asserted in this case

10 through pre-sale testing or experiences with other vehicles.

11 Consumer Complaints. Plaintiffs’ allegations of consumer complaints are similarly

12 insufficient. Plaintiffs only allege that Honda “should have learned” of the defects “from the sheer

13 number of reports received from dealerships and from customer complaints directly to Honda” and

14 from online postings. SAC ¶¶ 124–125; see also id. ¶ 147 (listing some online complaints). For

15 the complaints made directly to Honda, Plaintiffs have not pled the content of the complaints and

16 what exactly Honda was told prior to the sales of vehicles to the Plaintiffs. See Cadena, 2018 WL

17 8130613, at *11 (allegations regarding complaints to dealer insufficient where complaints did not

18 “indicate with any level of specificity what was actually reported to Honda and how”). For the

19 online complaints, as with their pre-sale testing allegations, Plaintiffs have not pled that Honda

20 actually became aware of these complaints and the relevant defects prior to the sales of the

21 vehicles to Plaintiffs. These allegations thus cannot show exclusive knowledge.

22 NHTSA Complaints. As currently pled, the allegations regarding complaints to NHTSA

23 about the Odyssey are also insufficient. Plaintiffs plead the same NHTSA complaints about the

24 Odyssey that they did in the First Amended Complaint. Compare ECF No. 25 (“FAC”) ¶ 136,

25 with SAC ¶ 146. The Court already found that these complaints were insufficient because they

26 largely post-date each Plaintiff’s purchase of his or her vehicle. Browning, 549 F. Supp. 3d at

27 1012–13. No alleged NHTSA complaint predates the Pappases’ March 2018 purchase of their

1 vehicle purchases. Plaintiffs urge the Court to “infer” that additional complaints reached Honda

2 throughout the class period and that their “sampling” of complaints are sufficient to establish pre-

3 sale knowledge. See Opp. at 22 (citing Rivera v. Ford Motor Co., 2017 WL 3485815, at *9 (E.D.

4 Mich. Aug. 15, 2017)). The Court declines to draw that inference here, especially given that the

5 vast majority of the complaints Plaintiffs plead post-date all the Plaintiffs’ purchases, and no

6 complaint pre-dates the earliest vehicle purchase.

7 Repair Requests. Plaintiff makes a reference to “repair requests made at dealerships,”

8 SAC ¶ 124, but provides no allegations regarding which specific repairs would establish Honda’s

9 knowledge of the defects prior to the sales of the vehicles to Plaintiffs. Without such allegations,

10 this cannot form the basis for pre-sale knowledge.

11 Technical Service Bulletins. Finally, Plaintiffs provide allegations about TSBs issued

12 about the Honda Odyssey and other vehicles with the Transmission. Plaintiffs offer allegations

13 about TSBs that purportedly go to both the Sealing Gasket Defect and the Software Calibration

14 Defect. As to the Sealing Gasket Defect, Plaintiffs allege that Honda first issued TSBs related to a

15 sealing gasket issue for this specific Transmission in 2015 for other vehicles. SAC ¶¶ 127–128.

16 Plaintiffs allege that the TSB was extended to the 2018 and 2019 Odyssey vehicles in September

17 2017 and September 2018, right as those vehicles went on sale. Id. ¶ 129. The Court finds that

18 this TSB makes it plausible that Honda had pre-sale knowledge of the Sealing Gasket Defect

19 during assembly of the Transmission from its experience with other vehicles and the extension of

20 those TSBs to the Odyssey vehicles. See Hardt v. Chrysler Grp. LLC, 2015 WL 12683963, at *5–

21 6 (C.D. Cal. Mar. 16, 2015) (TSBs issued for other vehicles that had same transmission made it

22 plausible that manufacturer had pre-sale knowledge of defect in same transmission in different

23 vehicle). The TSB describes the same defect Plaintiffs allege—“[d]uring assembly, the

24 transmission cover sealing gasket was torn.” SAC ¶ 127. While the Court has held that no

25 Plaintiff has pled that they have standing to assert claims on this defect, if a Plaintiff can allege

26 facts sufficient to support standing, these TSBs would plausibly plead pre-sale knowledge of the

27 defect.

1 Calibration Defect are not adequately pled at present. As with the Sealing Gasket Defect,

2 Plaintiffs allege that Honda issued TSBs starting in August 2015 regarding the Software

3 Calibration Defect in other vehicles and later extended it to the Odyssey vehicles. SAC ¶¶ 132–

4 142. But as the Court noted in its order dismissing the First Amended Complaint, Plaintiffs’

5 allegations regarding these TSBs “address different malfunctions or components related to the

6 Transmission,” and Plaintiffs have not specifically connected what they describe to the Software

7 Calibration Defect. Browning, 2021 WL 322007, at *7. The TSBs purportedly related to the

8 Software Calibration Defect describe a transmission stuck in 4th gear, SAC ¶ 132; a vehicle

9 independently shifting into neutral, id. ¶ 133; malfunctioning indicator lights for the gear position

10 indicator, id. ¶ 134; “loss-of-communication” issues with the Transmission, id. ¶ 135; slow

11 downshifting at low speeds and surging while breaking, id. ¶ 136; the Transmission “stay[ing] in

12 gear too long,” id. ¶ 137; “juddering” at speeds between 20 and 60 mph due to “deteriorated

13 transmission fluid,” id. ¶ 138; misinterpretation of sensor inputs by a control module, id. ¶¶ 139–

14 140; incorrect calculation of battery current, id. ¶ 141; and harsh or jerky upshifting, id. ¶ 142. In

15 most of these cases, Honda issued software updates to fix the issue. Id. ¶¶ 132–142. While at

16 least some of these TSBs describe symptoms that some Plaintiffs have experienced, Plaintiffs have

17 failed to connect these TSBs to the specific defect asserted here—that during manufacturing,

18 Honda fails to properly calibrate the software that controls the Transmission Control Module and

19 Powertrain Control Module. See Sloan v. Gen. Motors LLC, 2017 WL 3283998, at *7 (N.D. Cal.

20 Aug. 1, 2017) (“Sloan I”) (inadequate allegations of knowledge where TSBs “only discussed

21 general problems with the windows and did not explicitly mention the alleged window regulator

22 defect”). Plaintiffs must connect the issues described in the TSBs—i.e., incorrect battery current,

23 malfunctioning indicator lights, independent shifting, or “loss-of-communication” issues—to

24 Honda’s failure to properly calibrate the control modules interacting with the Transmission during

25 manufacturing. As currently pled, Plaintiffs do not do so.

26 2. Active Concealment

27 Honda also argues that Plaintiffs have failed to plead an active concealment theory of

1 allegations of Honda’s affirmative acts to prevent them from learning of the defects. Opp. at 23.

2 The Court finds that Plaintiff’s allegations are insufficient to plausibly plead active

3 concealment. “Mere nondisclosure does not constitute active concealment.” Herron v. Best Buy

4 Co. Inc., 924 F. Supp. 2d 1161, 1176 (E.D. Cal. 2013). To plead active concealment, Plaintiffs

5 must point to specific affirmative acts Honda took “in hiding, concealing or covering up the

6 matters complained of.” Id.; see also Szep v. Gen. Motors LLC, 491 F. Supp. 3d 280, 298 (N.D.

7 Ohio 2020) (“[C]oncealment by mere silence is not enough. There must be some trick or

8 contrivance intended to exclude suspicion and prevent injury.”).

9 Plaintiffs have not provided factual allegations to support their conclusory statements that

10 Honda “actively concealed and failed to disclose the Defects.” SAC ¶ 152. Plaintiffs argue that

11 they alleged that Honda “failed to disclose the defects” despite receiving “numerous complaints”

12 about them and that Honda “performed ineffective repairs” on Plaintiffs’ vehicles. Opp. at 23.

13 Neither of these allegations suffices. The first argument rests on mere nondisclosure of the

14 complaints Honda received, which is insufficient. Herron, 924 F. Supp. 2d at 1176. Second, even

15 if Plaintiffs’ allegations could be fairly read to claim that Honda “performed ineffective repairs”

16 (although Plaintiffs allege that some dealerships did not perform repairs because they found no

17 issues with the vehicles, see SAC ¶¶ 30–31, 66), these acts alone do not suffice for active

18 concealment. The repairs occurred after Plaintiffs purchased their vehicles, and courts have found

19 “failure to repair” allegations insufficient to support active concealment unless paired with other

20 allegations. See Blissard v. FCA US LLC, 2018 WL 6177295, at *14 (C.D. Cal. Nov. 9, 2018)

21 (active concealment not plausibly pled where plaintiffs alleged that repair shops failed to remedy

22 defect); Kahn v. FCA US LLC, 2019 WL 3955386, at *5 (C.D. Cal. Aug. 2, 2019) (active

23 concealment not plausibly pled where plaintiffs alleged that repairs “masked” the alleged defect);

24 compare, e.g., In re Toyota, 534 F. Supp. 2d at 1192 (active concealment plausibly pled where

25 Toyota also allegedly “hid defect from regulators and consumers” by withholding information

26 from NHTSA, excluded relevant categories of incidents when regulatory investigations were

27 underway, and misled the public as to the true reason for a recall of the subject vehicles).

1 * * *

2 While Plaintiffs have not provided plausible allegations establishing Honda’s pre-sale

3 knowledge or Honda’s active concealment, the Court finds that leave to amend is warranted.

4 Plaintiffs may be able to address some of these defects with amendment, and so the Court cannot

5 say that leave to amend would be futile. Given that this is the Court’s first detailed analysis of the

6 various bases Plaintiffs assert for Honda’s duty to disclose, Plaintiffs will be given leave to amend.

7 Honda’s motion to dismiss Plaintiffs’ consumer protection claims is GRANTED WITH

8 LEAVE TO AMEND, with the exception of the motion to dismiss the claim under Ohio’s

9 consumer protection statute, which is GRANTED WITHOUT LEAVE TO AMEND.

10 E. Fraud Claim and the Ohio and Michigan Plaintiffs and Subclasses

11 The Court finally addresses two other arguments Honda makes as to specific claims and

12 Plaintiffs. First, Plaintiffs for the first time in their Second Amended Complaint assert a common

13 law claim for “fraud by omission and/or fraudulent concealment.” SAC ¶¶ 374–386. Honda

14 argues that this claim must be dismissed because the Court’s previous order restricted amendments

15 to “the existing claims of the current parties.” MTD at 23 (quoting Browning, 549 F. Supp. 3d at

16 1014). Plaintiffs do not respond to this argument. While Honda also makes substantive

17 arguments against the fraud claim, the Court need not reach them because it agrees that adding the

18 fraud claim exceeded the scope of permissible amendment as specified in the previous order.

19 Accordingly, the common law fraud claim is DISMISSED as improperly added to the Second

20 Amended Complaint.

21 Second, Honda argues that because Michigan plaintiffs Kali and Eric Wescott no longer

22 assert claims, they should be dismissed from the case and the Michigan subclass stricken. MTD at

23 25. Plaintiffs also do not respond to this argument. The Court agrees with Honda that both

24 Wescotts should be dismissed and the Michigan subclass stricken because the operative complaint

25 does not assert any claims on their behalf. The Court previously dismissed with prejudice their

26 claim for violation of the Michigan Consumer Protection Act. Browning, 549 F. Supp. 3d at 1013.

27 The Court also dismissed with leave to amend their claim for breach of express and implied

1 Wescotts have not reasserted that claim. With no claims left, the Wescotts are DISMISSED, and

2 without Michigan residents left to represent the Michigan subclass, that subclass is STRICKEN.

3 Because this order also dismisses the only two claims asserted by Divina and Brian Pappas, see

4 supra Sections III.B.iii, III.D.i, they are also DISMISSED from this case, and the Ohio subclass

5 they sought to represent is STRICKEN.

6 IV. ORDER

7 For the foregoing reasons, IT IS HEREBY ORDERED that Honda’s motion to dismiss is:

8 • DENIED, as to Honda’s argument that the Software Calibration Defect is not adequately

9 pled;

10 • GRANTED WITH LEAVE TO AMEND, as to Honda’s argument that the Sealing Gasket

11 Defect is not adequately pled, with leave to amend limited to alleging that the vehicles of

12 one or more Plaintiffs exhibited the Sealing Gasket Defect;

13 • GRANTED WITHOUT LEAVE TO AMEND, as to the second claim for breach of

14 implied warranty under Florida law;

15 • GRANTED WITHOUT LEAVE TO AMEND, as to the fourth claim for breach of implied

16 warranty under Ohio law;

17 • DENIED, as to the sixth claim for breach of implied warranty under South Carolina law;

18 • GRANTED WITHOUT LEAVE TO AMEND, as to the ninth claim for breach of implied

19 warranty under Texas law;

20 • DENIED, as to the eleventh cause of action for breach of implied warranty under the Song-

21 Beverly Consumer Warranty Act;

22 • GRANTED WITHOUT LEAVE TO AMEND, as to the fifth claim for breach of express

23 warranty under South Carolina law;

24 • DENIED, as to the eighth claim for breach of express warranty under Texas law;

25 • DENIED, as to the twelfth claim for breach of express warranty under California law;

26 • GRANTED WITH LEAVE TO AMEND, as to the first claim for violation of the Florida

27 Deceptive and Unfair Trade Practices Act;

1 Consumer Sales Practices Act;

2 e GRANTED WITH LEAVE TO AMEND, as to seventh claim for violation of the Texas

3 Deceptive Trade Practices-Consumer Protection Act;

4 e GRANTED WITH LEAVE TO AMEND, as to the tenth claim for violation of the

5 California Consumer Legal Remedies Act; and

6 e GRANTED WITHOUT LEAVE TO AMEND, as to the thirteenth claim for fraud by

7 omission and/or fraudulent concealment.

8 || Additionally, because the Court has dismissed all of their claims, Plaintiffs Divina Pappas, Brian

9 Pappas, Kali Wescott, and Eric Wescott are DISMISSED from this case. The Michigan and Ohio

10 subclasses they purported to represent are STRICKEN.

11 Plaintiffs SHALL file an amended complaint within 45 days of this order, . Failure to

12 || meet the deadline to file an amended complaint or failure to cure the deficiencies identified on the

5 13 || record or in this order will result in a dismissal of the deficient claims with prejudice. Plaintiffs’

14 amendments shall not exceed the scope allowed by the Court in this order. In the event that a

3 15 further motion to dismiss is filed, it SHALL be limited to the claims amended pursuant to this

16 || order and briefing SHALL NOT exceed 15-15-7 pages.

|| Dated: March 18, 2022 han

hewn Lh amar

BETH LABSON FREEMAN

20 United States District Judge

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