Herron v. Best Buy Co. Inc. et al

Filing 84

ORDER signed by Judge Garland E. Burrell, Jr on 5/28/14 ORDERING for the stated reasons, the motion 71 is GRANTED IN PART AND DENIED IN PART. The damages component of Plaintiff's CLRA claim is DISMISSED for laptops Plaintiff did not purchas e. The remainder of the motion is DENIED. Plaintiff is granted thirty-five (35) days from the date on which this order is filed to file an amended complaint addressing the deficiencies in the dismissed damages component of the CLRA claim for lap tops Plaintiff did not purchase. Plaintiff is notified that failure to file an amended complaint within the prescribed time period could result in dismissal of the described component of the CLRA claim with prejudice under Rule 41(b). (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHAD HERRON, individually, on
behalf of himself and all
others similarly situated,

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Plaintiff,

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v.
BEST BUY STORES, L.P., a
Virginia limited partnership;
TOSHIBA AMERICA INFORMATION
SYSTEMS, INC., a California
corporation, inclusive,

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No.

12-cv-02103-GEB-JFM

ORDER GRANTING IN PART AND
DENYING IN PART DEFEDANT BEST
BUY STORES, L.P.’S MOTION TO
DISMISS CLAIMS IN PLAINTIFF’S
THIRD AMENDED COMPLAINT1

Defendants.

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Defendant Best Buy Stores, L.P. (“Best Buy”) moves in

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this putative class action for dismissal under Federal Rule of

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Civil Procedure 12(b)(6) of the California Consumer Legal Remedy

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Act

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Amended

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alternative for dismissal of the damages component of Plaintiff’s

(“CLRA”)

claim

Complaint

alleged
(“TAC”).2

against
Further,

it

in

Best

Plaintiff’s
Buy

moves

Third

in

the

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This matter is deemed suitable for decision without oral argument. E.D.
Cal. R. 230(g), and therefore the hearing scheduled on June 2, 2014 for this
motion is vacated.
2
Best Buy also seeks dismissal of Plaintiff’s “UCL unlawfulness claim,”
arguing it is “derivative” of Plaintiff’s CLRA claim. (Def.’s Mot. 5:10, ECF
No. 12.) However, this referenced UCL claim is not in the TAC.

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1

CLRA

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Plaintiff opposes the motion.

claim

that

concerns

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laptops

Plaintiff

did

not

purchase.

I. FACTUAL ALLEGATIONS

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The following allegations in Plaintiff’s TAC concern

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the motion. “In or about January 2010,” after looking at the

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product tags for various laptops, Plaintiff purchased a Toshiba

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Satellite L505 laptop from a Best Buy retail store in Folsom,

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California. (TAC ¶¶ 10-12, ECF No. 68.) “In Best Buy’s retail

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stores, each [l]aptop computer . . . has a Best Buy ‘product

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tag’” that “lists the [l]aptop’s battery life as being ‘up to’ a

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specified number of hours.” (Id. ¶¶ 41-42.) “Best Buy represented

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Plaintiff’s [l]aptop battery life to be ‘up to 3.32 hours.’”

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(Id. ¶ 42.) “There is not an explanation as to how the ‘up to’

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hours was derived on the product tag or elsewhere.” (Id. ¶ 43.)

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Plaintiff “decided to purchase the Toshiba Satellite

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L505

[laptop]

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representation that the battery life for the model was ‘up to

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3.32 hours.’” (Id. ¶ 12.) “In the years since Plaintiff purchased

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his

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represented 3.32 hours of battery life.” (Id. ¶ 15.)

laptop,

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based

he

has

substantially

never

once

on

his

achieved

reliance

even

close

on

the

to

the

“The ‘up to’ battery life representations on Best Buy’s

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product

tags

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Toshiba; rather such representations are common and identical

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regardless of the manufacturer of the [l]aptop.” (Id. ¶ 44.) Best

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Buy’s

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conducted under the MobileMark 2007 (“MM07”) benchmark. (Id.)

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During an MM07 test, the laptop monitor’s brightness is set to

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“20% to 30% of its normal level,” “Wi-Fi, Bluetooth, and other

“up

to”

are

not

battery

limited

life

to

claims

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[l]aptops

are

the

manufactured

result

of

by

tests

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wireless functions are disabled,” and “the main processor chip is

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set to 5% to 7.5% of its normal capacity.” (Id. ¶¶ 26-28.) “Best

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Buy’s use of the results from MM07 . . . grossly overstate[s] the

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battery life a consumer can expect to experience.” (Id. ¶ 45.)

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II. DISCUSSION

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1. CLRA Statute of Limitations

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Best Buy argues Plaintiff’s CLRA claim is barred by the

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applicable

statute

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challenges

the

of

limitations.

credibility

of

Specifically,

Plaintiff’s

Doe

Best

Buy

allegations

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pertinent to California’s relation back doctrine for fictitiously

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named Defendants in Plaintiff’s First Amended Complaint. Best Buy

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Stores made the same argument in its prior Motion to Dismiss

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Plaintiff’s Second Amended Complaint, which was rejected in an

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order filed on February 4, 2013. (See Order Granting in Part and

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Denying in Part Defs.’ Mot. to Dismiss 5:5-8:3, ECF No. 60.) That

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portion of the February 4, 2013 order is adopted herein, and

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therefore this portion of Best Buy’s motion is denied.

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Best Buy also states in its reply brief: “To the extent

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the Court deems any of the grounds of the present motion to be

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duplicative of those asserted before, Best Buy [Stores] requests

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that the Court treat the motion as one for clarification or

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reconsideration.” (Def.’s Reply 3:17-19, ECF No. 79.) However,

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“[t]he district court need not consider arguments raised for the

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first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997

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(9th Cir. 2007). Therefore, this request is not considered.

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2. CLRA Notice Requirement

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Best Buy argues the damages portion of Plaintiff’s CLRA

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claim concerning laptops he did not purchase should be dismissed
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since “the only make and model of laptop identified in the [CLRA]

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notice is the Toshiba Satellite laptop that Plaintiff actually

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purchased.”

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“Defendant’s

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substance” since “[o]n numerous occasions throughout this case,

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Defendant

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understanding as to the scope of the putative Class.” (Pl.’s

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Opp’n 14:13-16, ECF No. 77.)

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Mot.

argument

has

been

is

fully

9:27-28.)
clearly

able

Plaintiff
one

to

counters:

of

fully

form

over

articulate

its

Concerning the referenced notice, the CLRA prescribes:

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Thirty days or more prior to the commencement
of an action for damages pursuant to this
title, the consumer shall do the following:

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(1) Notify the person alleged to have
employed or committed methods, acts, or
practices declared unlawful by [the CLRA] of
the particular alleged violations of [the
CLRA].

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(2) Demand that the person correct, repair,
replace, or otherwise rectify the goods or
services alleged to be in violation of [the
CLRA].

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(Def.’s

Cal. Civ. Code § 1782(a) (emphasis added).

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“The CLRA’s notice requirement is not jurisdictional,

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but

compliance

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claim” for damages. Keilholtz v. Superior Fireplace Co., No. 08-

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cv-836

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(citing Outboard Marine Corp. v. Sup. Ct., 52 Cal. App. 3d 30,

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40-41 (1975)). “The purpose of the notice requirement . . . is to

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give

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defects to permit appropriate corrections or replacements,” and

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this “purpose may only be accomplished by a literal application

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of the notice provisions.” Outboard Marine, 52 Cal. App. 3d at

CW,

the

2009

with

WL

the

requirement

839076,

manufacturer

or

at

vendor

4

*2

is

(N.D.

necessary

Cal.

sufficient

to

Mar.

notice

state

30,

of

a

2009)

alleged

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40-41 (emphasis added).

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Plaintiff’s
of

CLRA

the

notice

expected

only

battery

describes
life

of

an

alleged

the

Toshiba

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misstatement

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Satellite L505 laptop he purchased. (See TAC, Ex. C, ECF No. 68-

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3.) Since “literal application of the [CLRA] notice provisions”

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is required,

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CLRA notice failed to “[n]otify” Best Buy “of the particular

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alleged violations” of the CLRA concerning laptops other than the

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Toshiba Satellite L505 Plaintiff purchased. Cal. Civ. Proc. Code

Outboard Marine, 52 Cal. App. 3d at 41, Plaintiff’s

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§ 1782(a)(1).

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CLRA

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dismissed. Cf. Ang. V. Bimbo Bakeries USA, Inc., No. 13-cv-1196-

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WHO,

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(dismissing “the CLRA damage claim based on the Substantially

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Similar

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plaintiffs did not purchase], as plaintiffs failed to provide

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adequate [CLRA] notice” concerning these products).

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claim

2013

Therefore,
concerning

WL

5407039,

Products

the
the

at

identified

damages

component

unnoticed

*12

in

(N.D.

the

of

referenced

Cal.

Amended

Sept.

Plaintiff’s
laptops

25,

Complaint[,

is

2013)

which

III. CONCLUSION

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For the stated reasons, the motion is GRANTED IN PART

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AND DENIED IN PART. The damages component of Plaintiff’s CLRA

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claim is DISMISSED for laptops Plaintiff did not purchase. The

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remainder of the motion is DENIED.

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Plaintiff is granted thirty-five (35) days from the

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date on which this order is filed to file an amended complaint

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addressing the deficiencies in the dismissed damages component of

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the CLRA claim for laptops Plaintiff did not purchase. Plaintiff

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is notified that failure to file an amended complaint within the

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prescribed time period could result in dismissal of the described
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component of the CLRA claim with prejudice under Rule 41(b).

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Dated:

May 28, 2014

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