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