Joanna Park-Kim v. Daikin Industries, Ltd. et al

Filing 75

MINUTES OF Motion Hearing held before Judge Christina A. Snyder RE: Defendant's Motion to Dismiss. Daikin's motion to dismiss 70 is GRANTED. Plaintiffs' Fourth Amended Complaint is DISMISSED with prejudice. ( MD JS-6. Case Terminated ) Court Reporter: Deborah Gackle. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL

JS-6

Case No.

2:15-cv-09523-CAS (KKx)

Title

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

Present: The Honorable

Date

‘O’

January 23, 2017

CHRISTINA A. SNYDER

Catherine Jeang

Deborah Gackle

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Jaclyn Anderson

Rick McKnight
Sharyl Reisman

Proceedings:

I.

DEFENDANT’S MOTION TO DISMISS (Filed December 12,
2016, Dkt. 70)

INTRODUCTION

On November 6, 2015, plaintiff Joanna Park-Kim filed a class action complaint in
the Los Angeles County Superior Court against defendants Daikin Industries, Ltd.
(“DIL”); Daikin Applied Americas Inc. (formerly known as “McQuay International”);
and Daikin North America, LLC (“Daikin NA”). Dkt. 1. In brief, Park-Kim alleges
injury arising from defective evaporator coils in defendants’ heating, ventilation, and air
conditioning units (“HVAC units”), which purportedly are susceptible to refrigerant leaks
due to corrosion in the units’ evaporator coils.
On December 9, 2015, defendants removed this action to federal court, asserting
diversity jurisdiction, as well as original jurisdiction pursuant to the Class Action
Fairness Act, 28 U.S.C. § 1332(d). Id. (Notice of Removal). On January 6, 2016, ParkKim filed a First Amended Complaint. Dkt. 24
On January 25, 2016, defendants Daikin Applied Americas Inc. and Daikin NA
filed a motion to dismiss the First Amended Complaint. Dkt. 28. On March 17, 2016,
the Court dismissed the First Amended Complaint without prejudice, emphasizing that
the pleadings must provide “factual enhancement[s]” in place of “generalized assertions,
‘legal conclusions,’ and ‘threadbare recitals of a cause of action.’” Dkt. 39 (Order on
Motion to Dismiss FAC), at 10 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date

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Case No.

2:15-cv-09523-CAS (KKx)

Title

JS-6

January 23, 2017

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

On April 15, 2016, plaintiff Maria Cecilia Ramos was added as a party in this
action and, along with Park-Kim, filed a Second Amended Complaint (“SAC”). Dkt. 40.
On May 16, 2016, defendants separately filed two motions to dismiss. Dkts. 44-5. On
August 3, 2016, the Court granted DIL’s and Daikin NA’s motions to dismiss for lack of
personal jurisdiction. Dkt. 55. The Court also granted Daikin Applied Americas Inc.’s
(hereinafter “Daikin” or “defendant”) motion to dismiss the SAC for failure to state a
claim. Dkt. 55.
On August 24, 2016, plaintiffs filed a Third Amended Complaint (“TAC”). Dkt.
56. On November 14, 2016, the Court dismissed the TAC for failure to state a claim. All
but four of plaintiffs’ claims were dismissed with prejudice. Plaintiffs were granted leave
to amend four claims, namely claims for violations of the California Right of Repair Act,
California Civil Code sections 896(g)(4)-(5) & 897 (the “RORA”), and claim for
violation of the California Consumer Legal Remedies Act, California Civil Code § 1750,
et seq. (the “CLRA”).
On November 28, 2016, plaintiffs filed the operative Fourth Amended Complaint
(“FAC”), alleging three claims for violation of the RORA and one claim for violation of
the CLRA. On December 12, 2016, defendant filed a motion to dismiss the FAC. Dkt.
70. On December 30, 2016, the plaintiffs’ filed an opposition. Dkt. 73. On January 9,
2017, the defendant filed a reply. Dkt. 74.
Having carefully considered the parties’ arguments, the Court rules as follows.
II.

BACKGROUND
The FAC alleges the following facts.

Daikin designs, manufactures, and sells heating, ventilation, and air conditioning
(“HVAC”) units. FAC ¶ 5. Daikin’s HVAC units have a component called an
evaporator coil that is manufactured with “aluminum-finned” copper tubing (“Daikin
Coils”1). Id. Aluminum fins are attached to the copper tubing in Daikin Coils by
Plaintiffs have labeled the HVAC evaporator coils at issue as “Daikin Coils”
throughout this action. For purposes of this order, the Court adopts plaintiffs’
1

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

aluminum bands that wrap around the tubes. Id. ¶ 29. The Daikin Coils contain a
gaseous refrigerant that absorbs heat from air, enabling the HVAC to perform its heating
and cooling function by either drawing heat from outside a building and directing it into
the building’s interior, or absorbing heat from inside a building and directing it out. Id.
¶6. Plaintiffs allege that the Daikin Coils fail to operate properly under normal
conditions. Id. ¶ 7. Specifically, plaintiffs allege that:
Instead of performing their intended purpose of extracting heat from air,
Daikin Coils corrode and leak refrigerant, leading to inefficient performance
and complete failure of the Daikin Coils and affected HVAC units . . . long
before the expiration of their useful lives. These leaks render the Daikin
Coils and Class HVAC units useless for their intended purposes, resulting in
costly service and repairs, including but not limited to recharging of
refrigerant and replacement of the Daikin Coils with new Daikin Coils.
Id. Plaintiffs further allege that the failure of Daikin Coils is “an unavoidable
consequence of their design and/or manufacture” because they are prone to
localized corrosion, development of microscopic holes, and ultimately refrigerant
leaks. Id. ¶ 8. Plaintiffs attribute localized corrosion to the accumulation of
corrosive materials in crevices between the copper tubes and the aluminum rings
surrounding them. Id. ¶ 34.
Daikin Coil defect “begins to manifest . . . as soon as the Daikin Coils are put to
use under normal environmental conditions. However, the corrosion and leaking of the
Daikin Coils is not discoverable until . . . the corrosion results in a leak.” Id. ¶ 35.
Plaintiffs allege that an “adequately designed or manufactured evaporator coil would not
exhibit the corrosion and resulting issues.” Id.¶ 36.
Plaintiffs allege that defendant knew the corrosion risks posed by aluminum-finned
copper-tube evaporator coils because it “has been the subject of academic papers for
decades.” Id. ¶ 66. Furthermore, according to plaintiffs, defendant received “a
substantial number of customer complaints,” “almost immediately” after introducing
terminology. The Court does not intend said terminology to imply a conclusion that the
evaporator coils at issue are unique to Daikin’s HVAC products as compared with others
in the industry.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Title

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January 23, 2017

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

HVAC units with Daikin Coils into the marketplace. Id. ¶ 67. Defendant allegedly hired
“Vantage Air Inc. (“Vantage Air”) to conduct maintenance, repairs, and leak testing in
connection with defective Daikin Coils in plaintiffs’ condominium building. Id. ¶ 69.
Plaintiffs allegedly paid to have their Daikin Coils recharged with refrigerant by Vantage
Air in 2015. Id. ¶ 7.
Park-Kim is the owner of a condominium. Id. ¶ 40. Park-Kim purchased the
condominium in 2010 with a Daikin Coil HVAC already installed. Id. The HVAC
installed in Park-Kim’s condominium was manufactured in November 2006. Id. ParkKim allegedly suffers harm as a result of the Daikin Coils’ failure because it has caused
her HVAC unit to fail, forcing her to pay for costly repairs, tests, and replacement Daikin
Coils. Id. ¶ 44.
Ramos’s HVAC unit was manufactured in December 2006. Id. ¶ 48. Ramos
purchased a condominium in June 2009 with the HVAC already installed. Id. Ramos
allegedly discovered the defect in the HVAC in June 2015, when her HVAC stopped
cooling air. Id. ¶ 49. Ramos alleges that she has spent hundreds of dollars attempting to
repair the HVAC and recharge the Daikin Coils with refrigerant. Id. ¶ 52. Ramos further
alleges that the leak caused her HVAC to fail. Id. ¶ 55.
III.

LEGAL STANDARDS

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Id. (internal citations omitted).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Date

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Case No.

2:15-cv-09523-CAS (KKx)

Title

JS-6

January 23, 2017

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles,
250 F.3d 668, 689 (9th Cir. 2001).
IV.

DISCUSSION
A.

Plaintiffs’ Right of Repair Act Claims

Plaintiffs allege that defendant violated three provisions of the RORA, California
Civil Code sections 896(g)(4), 896(g)(5), and 897.
1.

Section 896 Violations

Plaintiffs allege separate claims against Daikin for violations of California Civil
Code § 896(g)(4) and § 896(g)(5). Sections 896(g)(4) and (5) provide:
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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January 23, 2017

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.
(4) Heating shall be installed so as to be capable of maintaining a room
temperature of 70 degrees Fahrenheit at a point three feet above the floor in
any living space if the heating was installed pursuant to a building permit
application submitted prior to January 1, 2008, or capable of maintaining a
room temperature of 68 degrees Fahrenheit at a point three feet above the
floor and two feet from exterior walls in all habitable rooms at the design
temperature if the heating was installed pursuant to a building permit
application submitted on or before January 1, 2008.
(5) Living space air-conditioning, if any, shall be provided in a manner
consistent with the size and efficiency design criteria specified in Title 24 of
the California Code of Regulations or its successor.

Cal. Civ. Code § 896(g)(4)-(5) (emphasis added).
On November 14, 2016, the Court ruled that subdivisions 896(g)(4) and 896(g)(5)
are standards governing the installation and provision of HVAC units. In its prior
decision, the Court relied upon the plain language of the RORA standards (e.g. “[h]eating
shall be installed” and “air-conditioning, if any, shall be provided in a manner consistent
with [appropriate design criteria]”), a comparison of subdivisions (g)(4) and (g)(5) to
other RORA standards clearly applying to installation rather than manufacturers, and the
primary purpose of the statute in creating a mechanism for streamlined dispute resolution
between homeowners and builders. The Court concluded that the section 896 claims in
the TAC should be dismissed because plaintiffs’ allege only a product defect,
“unconnected to the installation or provision of appropriate HVAC units to plaintiffs’
condominiums.” Dkt. 67 at 19.
Plaintiffs have amended their pleadings to include a conclusory allegation that
defendant’s negligence “caused the installation” of the HVAC units at issue. FAC ¶¶ 60,
64. However, plaintiffs’ conclusory allegation lacks sufficient factual content to state a
claim. See Moss, 572 F.3d at 969. Plaintiffs do not allege that defendant played any
direct or indirect role in the installation or selection of the HVAC units in their respective
condominiums.
Much of plaintiffs’ opposition to the instant motion is in the nature of a motion for
reconsideration of the Court’s prior ruling. Plaintiffs argue that subdivisions (g)(4) and
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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January 23, 2017

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

(g)(5) should not be construed to apply only to the installation and provision of HVAC
units. Plaintiffs argue that the legislative history of the RORA supports its construction
of subdivisions (g)(4) and (g)(5) because the legislature considered “how long various
systems within a home can be expected to last” when it determined the appropriate
statutes of limitations for different claims. Opp’n at 10 (quoting Liberty Mutual v.
Brookfield Crystal Cove, 219 Cal. App. 4th 98, 107 (2013)). According to plaintiffs, the
legislature considered the useful life of home components because it intended to permit
product defect suits based upon violations of all of section 896’s standards. However,
plaintiffs incorrectly conflate two separate issues: how long after construction can a
homeowner bring suit for violations and who did the legislature intend to be liable for
specific construction defects. The fact that the legislature considered the useful life of a
home’s components in determining the statutes of limitations for certain violations does
not mean that the legislature intended subdivisions (g)(4) and (g)(5) to permit product
defect suits unrelated to the installation of HVAC units. For instance, in subdivision
(g)(14) the legislature set a statute of limitations of two years, apparently based upon the
useful life of dryer ducts. However, subdivision (g)(14) unambiguously applies only to
the installation of dryer ducts, rather than to the manufacture of dryer ducts. See Cal.
Civ. Code § 896(g)(14) (“Dryer ducts shall be installed and terminated pursuant to
manufacturer installation requirements”). Accordingly, although the legislature
considered the useful lives of products in setting statutes of limitations, that does not
mean that subdivisions (g)(4) and (g)(5) govern more than the installation or selection of
heating and cooling equipment.
With respect to plaintiffs’ claim for violation of subdivision (g)(5), plaintiffs argue
that subdivision (g)(5) is broader than subdivision (g)(4) because subdivision (g)(5)
incorporates Title 24 efficiency standards that can be applied to a manufacturer.
According to plaintiffs, the foregoing language permits a claim against defendant because
Title 24 of the California Code of Regulations sets efficiency standards for airconditioners that cannot be satisfied by an HVAC unit which has broken down entirely.
However, plaintiffs ignore the language of subdivision (g)(5) requiring that airconditioning “be provided” in compliance with certain standards. Said phrase limits the
standard’s application to how air-conditioning is provided. Plaintiffs do not allege that
defendant caused air-conditioning “to be provided” to their condominiums. Additionally,
though creatively framed as an issue with the HVACs’ energy efficiency, plaintiffs’
allege that their HVACs leak refrigerant and stop functioning entirely. Plaintiffs do not
demonstrate that housing agencies, by drafting the Building Code, or the legislature, by
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UNITED STATES DISTRICT COURT
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JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

enacting subdivision (g)(5), contemplated a claim for violation of energy efficiency
standards where an air-conditioner has broken entirely but has not been unplugged. In
fact, subdivision (g)(5) appears to contemplate that some new homes or condominiums
may have no air-conditioning at all without having run afoul of the RORA.
See § 896(g)(5) (governing the provision of air-conditioning, “if any” is provided).
It is not immediately clear what is meant by the phrase “size and efficiency design
criteria specified in Title 24” in subdivision (g)(5). Title 24 includes many standards for
buildings, ventilation, and air-conditioning. Nonetheless, subdivision (g)(5)’s
incorporation of Title 24 (the “Building Code”) lends support to the Court’s reading of
the statute. The Building Code does not impose obligations upon manufacturers.
Instead, the Building Code governs which types of air conditioning units may “be
installed” in a building. Cal. Code Regs., tit. 24, § 110.2 (requiring that only airconditioners meeting certification and efficiency requirements be installed in certain
buildings). Elsewhere, the Building Code requires that residential buildings be designed
with a “space-conditioning” system “constructed and installed” to satisfy a number of
standards for selection of air-conditioners, including, for example, that air-conditioning
units be appropriately sized for the needs of a building pursuant to specific buildingdesign methodologies. Cal. Code Regs., tit. 24, § 140.4 (emphasis added). In light of the
foregoing, it appears that the Building Code is intended to impose requirements upon the
parties involved in the design and construction of buildings as well as the decisions about
which air-conditioners to install. Neither Title 24 nor section 896(g)(5) of the RORA
appear to contemplate air-conditioner manufacturer liability unless the manufacturer is
alleged to have played some role in the design or construction of a building and the
decision to provide air-conditioning therein. Plaintiffs make no such allegation here.2

Plaintiffs request that the Court refrain from ruling on their RORA claims until
after the California Supreme Court issues a decision in McMillin Albany LLC v. Superior
Court, 239 Cal. App. 4th 1132 (2015), cert. granted, 360 P.3d 1022 (Nov. 24, 2015). The
Court declines to do so.
2

Although, in McMillin, the California Supreme Court may address general
questions relating to the interpretation of the RORA, McMillin does not appear to present
analogous interpretive questions as those presented here. The two issues on appeal in
McMillin relate to: (1) whether the RORA is a homeowner’s exclusive remedy for
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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January 23, 2017

JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

In light of the foregoing, plaintiffs’ claims for violation of California Civil Code
section 896 are DISMISSED.
2.

Section 897 Violation

Plaintiffs have not amended their allegations relating to section 897. Instead,
plaintiffs argue that the Court should reconsider its dismissal of analogous allegations in
the TAC.
Section 897 provides that:
The standards set forth in this chapter are intended to address every function
or component of a structure. To the extent that a function or component of a
structure is not addressed by these standards, it shall be actionable if it
causes damage.
Cal. Civ. Code § 897. However, liability for manufacturers pursuant to section 897 is
limited by the provisions of section 896(g)(3)(E). California Civil Code section
896(g)(3)(E) provides that, “[t]his title does not apply in any action seeking recovery
solely for a defect in a manufactured product located within or adjacent to a structure.”
Because section 896 clearly contemplates manufacturer liability for some product
defects, see Cal. Civ. Code § 896 (“[an] individual product manufacturer, or design
professional, shall . . . be liable for . . . violation of, the following standards”), section
896(g)(3)(E) has been interpreted as precluding defective product claims unless the
defect violates a specific standard set forth in section 896, see Greystone, 168 Cal. App.
4th at 1220 (“section 896, subdivision (g)(3)(E) is intended to bar actions in which the
claimant seeks to recover for a defect in a product that does not violate one of the
standards set forth in section 896”).

residential construction defects such that it preempts other causes of action and (2)
whether the RORA requires a homeowner to comply with the RORA prelitigation
procedure prior to bringing a any claims against a builder. Neither question in McMillin
appears to turn upon or relate to the question presented here, namely, what must be
alleged to state a claim for violation of subdivisions 896(g)(4) and 896(g)(5).
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UNITED STATES DISTRICT COURT
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JOANNA PARK-KIM V. DAIKIN INDUSTRIES, LTD, ET AL.

Plaintiffs argue that subdivision (g)(3)(E) is inapplicable to their claims because
HVAC units are not products “located within or adjacent to a structure.” Instead,
plaintiffs urge, HVAC units are “incorporated into the structure” of their condominiums.
Opp’n at 15. Plaintiffs argument is without merit. Plaintiffs draw upon a theoretical
distinction which has no basis in the language of the RORA or its legislative history.
Additionally, plaintiffs concede that the defective HVAC units and Daikin Coils were
“installed in” their condominiums. FAC ¶¶ 40; 44; 48; 52; 56 (emphasis added).
Accordingly, plaintiffs’ argument that they allege a defect “not merely located in or next
to a structure,” Opp’n at 15, is inapposite. Subdivision (g)(3)(E) precludes product defect
claims based on products in the home unless said claims are for violation of section 896.
Plaintiffs do not contest the location of their HVACs. Accordingly, plaintiffs claim
pursuant to section 897 is barred by section 896(g)(3)(E) and appropriately DISMISSED.
B.

CLRA Claim

Plaintiffs have not substantially amended their CLRA claim. Accordingly, the
CLRA claim is appropriately dismissed with prejudice for the same reasons previously
identified by the Court.
In order to establish standing to bring a CLRA claim, plaintiffs must demonstrate
that they suffered an injury in fact “as a result” of defendant’s unfair or deceptive acts.
Cal. Civ. Code § 1780(a). The phrase “as a result of” requires that plaintiffs plead a
causal connection between their injury and defendant’s omission or reliance upon
defendant’s representations. Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 326, 246
P.3d 877, 887 (2011). In order to show reliance upon an omission, “[o]ne need only
prove that, had the omitted information been disclosed one would have been aware of it
and behaved differently.” Mirkin v. Wasserman, 5 Cal. 4th 1082, 1093 (1993); see also
Keegan v. Am. Honda Motor Co., 838 F. Supp. 2d 929, 940 (C.D. Cal. 2012) (Morrow,
J.) (noting that a CLRA claim based upon a duty to disclose must satisfy the reliance
standard from Mirkin). Although plaintiffs allege that “had they known [about] . . . the
defective Daikin Coils, they would not have purchased the [HVACs] or would have paid
less for them,” id. ¶ 126 (emphasis added), such conclusory allegations are insufficient to
establish standing where plaintiffs do not allege that they would have known about the
alleged defect if it had somehow been disclosed by Daikin. Plaintiffs do not allege that

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they purchased their condominiums, with an integrated HVAC system, in reliance upon
any claim, representation, or omission by the manufacturer of their HVAC systems. 3
Additionally, CLRA claims are also subject to Rule 9(b)’s heightened pleading
standard. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009). Plaintiffs have
failed to satisfy said standard because they have failed to allege when, where, or how
they were deceived in regard to their HVAC units. Plaintiffs’ allegation that they would
have paid less if they had known about the HVAC units installed is insufficient to
established when, where, and how defendant’s conduct constituted fraud. Accordingly,
plaintiffs have failed to satisfy the heightened pleading standards of Rule 9(b).
Accordingly, plaintiffs’ CLRA claim is appropriately DISMISSED for lack of
standing and for failure to satisfy the heightened pleading standards of Rule 9(b).
V.

CONCLUSION

Daikin’s motion to dismiss is GRANTED. Plaintiffs’ FAC is DISMISSED with
prejudice.
IT IS SO ORDERED.
00
Initials of Preparer

08
CMJ

Furthermore, plaintiffs allege that they purchased condominiums, of which an
HVAC was one component. Plaintiffs do not allege that they considered, examined,
knew about, or negotiated over the type of HVAC installed in their condominiums or that
the HVAC was discussed while negotiating each condominium’s price. Accordingly,
“drawing upon judicial experience and common sense,” the Court concludes that
plaintiffs have not alleged a plausible claim for relief. See Iqbal, 556 U.S. at 679.
3

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