Alger v. FCA US LLC

Filing 141

ORDER signed by Senior Judge Morrison C. England, Jr. on 2/18/2020 DENYING 114 Motion to Stay and GRANTING 54 Motion for Class Certification and Appointment of Class Representative and Counsel. (Zignago, K.)

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Williams A. Kershaw, State Bar No. 057486
Stuart C. Talley, State Bar No. 180374
Ian J. Barlow, State Bar No. 262213
KERSHAW, COOK & TALLEY PC
401 Watt Avenue
Sacramento, CA 95864
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Mark P. Chalos (pro hac vice)
Kenneth S. Byrd (pro hac vice)
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
222 Second Avenue South, Suite 1640
Nashville, Tennessee 37201
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff and the Putative Class
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHAWN ALGER, as an individual and on
behalf of all others similarly situated,

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Plaintiff,

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v.

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FCA US LLC f/k/a CHRYSLER GROUP
LLC, a Delaware Corporation, and DOES
1 through 100, inclusive,

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Case No. 2:18-CV-00360-MCE-EFB
ORDER GRANTING PLAINTIFF’S
MOTION FOR CLASS CERTIFICATION
AND APPOINTMENT OF CLASS
REPRESENTATIVE AND CLASS
COUNSEL
Judge: Hon. Morrison C. England, Jr.

Defendant.

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-1ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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This matter comes before the Court on Plaintiff’s Motion for Class Certification and

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Appointment of Class Representative and Class Counsel, (ECF No. 54, “Plaintiff’s Motion”) and

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Defendant’s Motion to Stay (ECF No. 114) (Defendant’s Motion).

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The Court has reviewed the briefing and record with respect to Defendant’s Motion and

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concludes that no stay is warranted. Accordingly, Defendant’s Motion to Stay is DENIED.

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For his part, Plaintiff moves for certification of two classes of owners and lessees of

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certain Chrysler vehicles that contain allegedly defective spring-loaded headrests that suddenly

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and violently deploy, potentially striking the driver and/or passenger in the back of the head

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(“Unintended Deployment”). Having reviewed all the briefing and responses filed with respect to

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Plaintiff’s Motion, and other materials submitted therewith, the Court finds and further rules as

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follows:
BACKGROUND

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The Defendant, FCA US LLC (referred to herein as “Chrysler”), sells millions of vehicles

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throughout the United States. Beginning in 2010, Chrysler began equipping some of its vehicles

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with a purported safety device known as an Active Head Restraint System (“AHR System”).

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Chrysler has sold or leased approximately 279,000 vehicles with an AHR System in California.

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An AHR System is a mechanism built into the vehicles’ front headrests that allows the headrests

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to “deploy” in the event of a rear-end collision. The AHR System works by splitting the headrest

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into two sections; the padded front and the back. In between the front and back of the headrests

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are two powerful springs. Much like a mouse trap, the spring-loaded headrests stay in place

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through the use of a hook that latches to a metal “striker pin.” When the sensors in the vehicle

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detect a rear-end collision, the hook releases the pin and the spring-loaded headrest launches

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forward. If the AHR System works properly, it is intended to reduce the risk of whiplash in the

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event of a rear-end collision. Plaintiff alleges that, for many Chrysler owners, the AHR Systems

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do not work as intended; instead, the headrests unexpectedly deploy without warning while the

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vehicle is in normal operation and not in the midst of a crash. Plaintiff contends that the AHR

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System failures are the result of a common design defect that Chrysler failed to disclose to

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consumers.
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ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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On April 23, 2018, Plaintiff, on behalf of himself and others similarly situated, filed the

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operative Second Amended Class Action Complaint against Chrysler asserting claims for: (1)

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violations of California’s Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750, et

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seq.; (2) violations of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§

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17200, et seq.; (3) breach of implied warranty under California’s Song-Beverly Consumer

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Warranty Act (“Song Beverly Act”), Cal. Civ. Code §§ 1792, 1791.1, and 1794, et seq.; and (4)

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breach of express warranty. ECF No. 13.

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Plaintiff seeks an order certifying the following classes pursuant to Rule 23 of the Federal
Rules of Civil Procedure:

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The Damages Class pursuant to Rule 23(b)(3)1

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“All persons in California who currently own or lease, or who have owned
or leased, any Class Vehicle manufactured by Chrysler or any of its
subsidiaries or affiliates that is equipped with an Automatic Head Restraint
(“AHR”) system.”

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The Injunctive Class pursuant to Rule 23(b)(2)

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“All persons in California who currently own or lease any Class Vehicle
manufactured by Chrysler or any of its subsidiaries or affiliates that is
equipped with an AHR system.”

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Class Vehicles comprise the following make-year and model Chrysler Vehicles:
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2010-2018 Dodge Journey
2010-2011 Dodge Nitro
2010-2012 Jeep Liberty
2010-2017 Jeep Patriot or Compass
2010-2012 Dodge Caliber
2010-2018 Dodge Caravan
2011-2018 Dodge Durango
2011-2018 Jeep Grand Cherokee
2010-2014 Sebring/Avenger

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The Court, as set forth in its Conclusion below, will certify the class only as to the
economic loss claims set forth in the Second Amended Class Action Complaint (Dkt. 13), and will
not certify any personal injury claims or damages. In addition, the Court will exclude from the
Class Chrysler, its employees, officers, directors, and legal representatives; Class Counsel and their
employees; and the judicial officers and their immediate family members and associated court staff
assigned to this case.
-3ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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LEGAL STANDARD
It is within the court’s broad discretion to “determine whether a class should be certified,

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and to revisit that certification throughout the legal proceedings.” Salas v. Toyota Motor Sales,

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U.S.A., Inc., No. CV 15-8629, 2019 WL 1940619, at *2 (C.D. Cal. Mar. 27, 2019) (quoting

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United Steel, Paper & Forestry, Rubber Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union,

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AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir. 2010)).

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A case may be certified as a class action if it meets the requirements outlined in Rule 23
of the Federal Rules of Civil Procedure:
(1) The class is so numerous that joinder of all members is impracticable;

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(2) There are questions of law or fact common to the class;

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(3) The claims or defenses of the representative parties are typical of the claims or

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defenses of the class;
(4) The representative parties will fairly and adequately protect the interests of the class.

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Fed. R. Civ. P. 23(a). Additionally, the proposed class must meet one of three requirements

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specified in Rule 23(b). See Salas, 2019 WL 1940619, at *2. The party seeking class

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certification has an affirmative duty to demonstrate that the Rule 23 elements are satisfied. Id.

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The court is tasked with conducting a “rigorous” analysis before granting or denying class

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certification. This analysis may “entail some overlap with the merits of the plaintiff’s underlying

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claim[,]” and the court may find it necessary to, at times, “probe behind the pleadings[.]” Wal-

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Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011). But, even so, “merits questions may be

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considered to the extent – but only to the extent – that they are relevant to determining whether

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the Rule 23 prerequisites . . . are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568

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U.S. 455, 466 (2013). Rule 23 does not permit a “free-ranging merits inquir[y] . . . at the

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certification stage.” Id.; see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 n.8 (9th Cir.

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2011) (explaining that a district court’s examination of the merits should take place “only

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inasmuch as [the court] must determine whether common questions exist; not to determine

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whether class members could actually prevail on the merits of their claims.”). Class certification

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should not become a “mini-trial.” Ellis, 657 F.3d at 983 n.8; see also Salas, 2019 WL 1940619,
-4ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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at *2.
Having conducted a rigorous analysis, including consideration of all evidence submitted

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in favor of and in opposition to the motion, the Court finds that the class, including the Class

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Vehicles listed above, satisfies the requirements of Rule 23(a) and Rule 23(b)(3) of the Federal

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Rules of Civil Procedure. The Court turns to each of these requirements in turn.
DISCUSSION

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Numerosity. Rule 23(a)(1) requires that “the class is so numerous that joinder of all class

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members is impracticable.” Fed. R. Civ. P. 23(a)(1). Although “no specific minimum number of

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plaintiffs asserted” is required to obtain class certification, “a proposed class of at least forty

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members presumptively satisfies the numerosity requirement.” Nguyen v. Radient

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Pharmaceutical Corp., 287 F.R.D. 563, 569 (C.D. Cal. 2012). Plaintiff’s purported class far

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exceeds forty members. He has shown that, within California, Chrysler has sold or leased

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approximately 279,000 Class Vehicles, of various models and years, equipped with an AHR

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System. Even if the Court determined, which it does not, that Chrysler is correct that “only a tiny

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percentage of these vehicles might” have defective AHR Systems, the class would still easily

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satisfy the requirements of Rule 23(a)(1).2

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Commonality. Plaintiff also satisfies Rule 23(a)(2), which requires that “there are

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questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The focus of this inquiry

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is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution

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of the litigation.” Dukes, 564 U.S. at 350 (italics and citation omitted). Put another way, a class

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achieves commonality if “an issue that is central to the validity of each one of the claims” is

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“capable of classwide resolution.” Id. A plaintiff need not show commonality across a class with

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regard to all questions of law or fact. See Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957

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(9th Cir. 2013); see also Falco v. Nissan North America Inc., No. CV 13-00686 DDP, 2016 WL

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132747, at *4 (C.D. Cal. Apr. 5, 2016). Rather, a plaintiff meets the requirements of Rule

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23(a)(2) by showing that the class has in common “a single significant issue of law or fact.”

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Indeed, Defendant expressly concedes that the numerosity requirement is met here. See
Def’s Opp., ECF No. 66, at 11
-5ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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Abdullah, 731 F.3d at 957 (internal quotation marks omitted).
Plaintiff points to a number of instances in which courts granted class certification when

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faced with similar claims. See, e.g., Wolin v. Jaguar Land Rover N. Am. LLC, 617 F.3d 1168,

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1172 (9th Cir. 2010); Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir. 2005); Falco,

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2016 WL 132747, at *5; Salas, 2019 WL 1940619, at *5-10. That standard is “easily” met in

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cases indistinguishable from the case here: where “claims of all prospective class members

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involve the same alleged defect, covered by the same warranty, and found in vehicles of the same

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make and model.” Wolin, 617 F.3d at 1172; see also Hanlon v. Chrysler Corp., 150 F.3d 1011,

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1019-20 (9th Cir. 1998) (finding commonality satisfied where claims “stem[med] from the same

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source: the allegedly defective designed rear liftgate latch”); Edwards v. Ford Motor Co., 603 F.

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App’x 538, 540 (9th Cir. 2015) (finding that “whether a defect existed and whether Ford had a

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duty to disclose the defect were both questions common to the class”); Chamberlan, 402 F.3d at

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962 (finding that “whether the [vehicle] design . . . was defective,” “whether [defendant] was

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aware of alleged design defects,” and “whether [defendant] had a duty to disclose” were common

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questions).

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Plaintiff identifies multiple significant common issues of law and fact. Principally, a

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common question exists as to whether Class Vehicles suffered from a defective AHR System

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design. Chrysler argues that any alleged defect was a manufacturing error, not a design one, and

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that the presence of the defect-generating agent varied among the Class Vehicles. Plaintiff replies

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that the evidence establishes that the AHR System design, materials, and alleged defect are

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uniform across the class. In support of these claims, Plaintiff proffered several experts, as well as

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pre-litigation documents from Chrysler and its supplier. Having reviewed the expert opinions

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proffered by both parties, the deposition transcripts cited, and the documentary evidence, the

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Court finds that the central questions in this case involving a defective AHR System can be

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resolved by common questions submitted to a jury.3

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This case is somewhat unique in that the purported defect is latent and a class member
cannot know if his or her car is affected without spending a disproportionate amount to have the
headrests removed and checked. Given the inability to predict when a particular headrest might
deploy, all class members are to some extent already suffering from the defect of uncertainty;
Footnote continued on next page
-6ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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In particular, Plaintiff’s expert Bruce Davis, Ph.D., opined that the design in the AHR

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System in Class Vehicles is identical from an engineering standpoint. Dr. Davis, who has a Ph.D.

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in Mechanical Engineering specializing in polymer processing, behavior, and analysis, also

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opined extensively on the defect in the plastic material and pins used by the design of the AHR

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System and how the AHR System is susceptible to a common defect that can lead to failures.

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(ECF No. 54-3.) The Court finds his opinions credible in so far as this stage of litigation requires:

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determining whether common questions exist and predominate. See Butler v. Sears, Roebuck &

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Co., 727 F.3d 796, 801 (7th Cir. 2013) (“There is a single, central, common issue of liability:

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whether the [product] was defective.”).

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Chrysler contends that commonality is lacking principally for two reasons.

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First, Chrysler argues that there are no common questions because the failure rates are

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low and vary across vehicle models. But in that respect this case is on all fours with decisions

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from the Ninth Circuit and other district courts in the Circuit. In Wolin, for example, the Ninth

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Circuit ruled that plaintiffs “easily” satisfied the commonality requirement because they identified

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the following common issues: (a) whether the vehicle’s alignment geometry was defective; (b)

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whether the defendant was aware of the defect; (c) whether the defendant concealed the defect;

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and (d) whether that conduct violated consumer protection laws. See Wolin, 617 F.3d at 1172.

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The defendant argued that class certification was nevertheless inappropriate because the defect

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would manifest irregularly or not at all. See id. at 1173. The Ninth Circuit disagreed, explaining

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that “proof of the manifestation of a defect is not a prerequisite to class certification.” Id.

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Second, Chrysler takes issue with the fact that a handful of 2010 vehicles tested may not

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have been defective. The Court finds that for certification purposes the evidence shows that the

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same AHR System design and materials were used in model year 2010 vehicles as were used in

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all other Class Vehicles. Additionally, the 2010 vehicles were manufactured in the same facility

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by the same third-party vendor as other model year vehicles. Thus, there remains a common

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question as to the presence of a design defect in these vehicles.

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stated another way, the unknown potential for a deployment may be the actual defect that is
certainly present for every Class Vehicle.
-7ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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The core of Plaintiff’s case is that the design of the AHR Systems in Class Vehicles is

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defective, Chrysler knew (or should have known) about the defect, and Chrysler failed to disclose

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material information. As such, there are similar common questions that can be identified, such

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as: (a) whether the AHR System is defective; (b) whether Chrysler was aware of the defect; (c)

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whether Chrysler concealed or omitted information about the defect; (d) whether the defect

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constitutes a safety risk; (e) whether the defect rendered the Class Vehicles unmerchantable; and

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(f) whether Chrysler’s conduct was unlawful and amounted to violation of the CLRA and UCL.4

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See Salas, 2019 WL 1940619, at *5 (finding several questions of fact and law that are common to

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the class, including “whether a defect exists in the Toyota Camry XV 50, whether Toyota knew

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about it, whether Toyota concealed the defect, whether Toyota violated consumer protection

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statutes as a result, and whether the alleged defect rendered [the vehicle] unmerchantable”).

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Plaintiff has satisfied the commonality prong.

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Typicality. Plaintiff’s claims are “reasonably coextensive with those of absent class

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members,” and therefore satisfy the Rule 23(a)(3) requirement. Just Film, Inc. v. Buono, 847

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F.3d 1108, 1116 (9th Cir. 2017) (quoting Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014)).

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Plaintiff alleges that the headrest in his 2015 Jeep Grand Cherokee unexpectedly deployed while

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he was driving his vehicle. He alleges that the deployment startled and distracted him, causing a

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safety hazard, and injured him. He further claims that the deployment was the result of a design

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defect that affects all of the Class Vehicles. Finally, Plaintiff claims that although the deployment

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took place while his car was under warranty, he was forced to pay out-of-pocket for a new

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headrest that allegedly suffered from the same defect.

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Chrysler argues that Plaintiff’s claims are atypical because the projected failure rate of his

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vehicle differs from that of other Class Vehicles. But, as explained with respect to commonality,

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variations in manifestation are no bar to class certification. And, in any event, the precise details

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of a claim need not be identical across the class; it is enough that they are similar. See, e.g.,

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Plaintiff concedes that for the CLRA claim, a subclass should be created consisting of all
members of the California class who are “consumers” within the meaning of California Civil Code
§ 1761(d). This Court agrees and notes that Plaintiff Alger is a “consumer” within the meaning of
the code. (Def.’s Reply, ECF No. 69, at 11-12.)

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ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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Wolin, 617 F.3d at 1175 (“Typicality can be satisfied despite different factual circumstances

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surrounding the manifestation of the defect. [Plaintiffs] . . . may have a viable claim regardless of

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the manifestation of the defect.”). Plaintiff’s claims and those of other proposed class members

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are based on the same core facts—the alleged presence of the defective AHR System and

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Chrysler’s concealment of the defect—as well as similar injuries, and he proceeds on the same

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legal theory as other class members’ claims. Typicality is met because the legal interests “are the

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same across all potential class members.” Falco, 2016 WL 132747, at *7.

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Adequacy. Rule 23(a)(4) questions whether the named plaintiff and his counsel have

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“any conflicts of interest with other Class Members” and whether he and his counsel “will

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prosecute the action vigorously on behalf of the class.” The Court finds that Plaintiff will

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adequately represent the interests of the class and will vigorously prosecute the claims,

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notwithstanding his decision to forego potential personal injury claims. See, e.g., Andren v.

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Alere, Inc., No. 16-cv-1255, 2017 WL 6509550, at *8 (S.D. Cal. Dec. 20, 2017) (explaining that

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“any risk of preclusion can be mitigated through the opt-out provisions” and “Courts can also

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expressly reserve the plaintiff’s right to maintain a second action”); cf. Benedict v. Hewlett-

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Packard Co., 314 F.R.D. 457, 473 (N.D. Cal. 2016) (finding adequacy satisfied even where,

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unlike here, the named plaintiff “additionally [brought] individual claims” on behalf of himself

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“where there is no evidence that the individual claims will impair his ability to represent the

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interests of the class.”).

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Out of an abundance of caution, the Court, as set forth in its Conclusion below, will

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certify the class only as to the economic loss claims set forth in the Second Amended Class

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Action Complaint (ECF No. 13), and will not certify any personal injury claims or damages.

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Finally, all counsel for Plaintiff are experienced, qualified, and fully capable of

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representing the interests of the class. (ECF No. 54 at p. 21; Talley Decl. ¶ 21 and Ex. T; see

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Byrd Decl. ¶¶ 7-20.) Adequacy is satisfied here.

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Predominance. Plaintiff satisfies the predominance inquiry, which “tests whether

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proposed class actions are sufficiently cohesive to warrant adjudication by representation.”

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Amchem Prods, Inc. v. Windsor, 521 U.S. 591, 594 (1997); see also Tait v. BSH Home
-9ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

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Appliances Corp., 289 F.R.D. 466, 478 (C.D. Cal. 2012). Though there is “substantial overlap”

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between the commonality and predominance test, the predominance test is “far more demanding.”

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Wolin, 617 F.3d at 1172. The predominance analysis “asks whether the common, aggregating-

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enabling, issues in the case are more prevalent or important than non-common, aggregation-

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defeating, individual issues.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016).

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This standard is “readily met” in consumer fraud cases. Tait, 289 F.R.D. at 478 (quoting

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Amchem, 521 U.S. at 625).

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As explained in the Court’s discussion of commonality above, the central issues in this

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case turn on Chrysler’s uniform conduct and the questions key to Plaintiff’s claims will be

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answered by reference to the same set of facts. See Wolin, 617 F.3d at 1173 (finding that

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common issues predominated where Land Rover knew about the existence of an alleged defect

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and plaintiff sought relief on a duty-to-disclose theory); see also Chamberlan, 402 F.3d at 962;

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Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 521 (C.D. Cal. 2012); Parkinson v. Hyundai

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Motor Am., 258 F.R.D. 580, 596 (C.D. Cal. 2008). The Court now addresses predominance with

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respect to each claim at issue in turn.

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UCL and CLRA Claims

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Courts regularly find predominance satisfied and certify UCL and CLRA class claims.

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See, e.g., Salas, 2019 WL 1940619, at *13-14; Tait, 289 F.R.D. at 480; Keegan, 284 F.R.D. at

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532-34. The UCL prohibits “unfair competition,” which is broadly defined as “any unlawful,

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unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. The CLRA

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forbids certain “unfair methods of competition and unfair or deceptive acts or practices” in the

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sale or lease of goods to consumers for personal or household use. Cal. Civ. Code § 1770(a). In

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considering UCL and CLRA claims, courts rely on “the same objective test, that is, whether

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‘members of the public are likely to be deceived.’” Tait, 289 F.R.D. at 480.

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This test does not require an individual showing of deception, reliance, or injury under the

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UCL because “unlike common-law fraud claims that focus on the victim’s reliance or damages,

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the UCL focuses on the perpetrator’s behavior[.]” Berger v. Home Depot USA, Inc., 741 F.3d

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1061, 1068 (9th Cir. 2014), abrogated on other grounds by Microsoft Corp. v. Baker, 137 S. Ct.
-10ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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1702 (2017). Instead, “a violation of the UCL can be proved with common evidence regarding

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the nature of the design defect in question, the likely effect of the defect on class vehicles, its

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likely impact on vehicle safety, what [Defendant] knew or did not know, and what it disclosed or

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did not disclose to consumers.” Keegan, 284 F.R.D. at 534. Furthermore, a plaintiff need not

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demonstrate individual reliance; a presumption or inference of reliance arises as to the entire class

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“wherever there is a showing that a misrepresentation was material.” In re Tobacco II Cases, 46

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Cal. 4th 298, 327 (2009) (citation omitted); Steroid Hormone Prod. Cases, 181 Cal. App. 4th 145,

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157 (2010).

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Here, Plaintiff will be able to establish through common evidence a violation of the

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UCL’s fraudulent prong by showing the uniformity of the defective AHR System, the effect on

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the class, the defect’s impact on safety, what Chrysler knew and disclosed, and what Chrysler

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knew and did not disclose. See Keegan, 284 F.R.D. at 534. These questions predominate over

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any individual concerns related to Plaintiff’s UCL claim.

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Similarly, Plaintiff’s claim regarding the UCL’s unfairness prong is predominated by

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common questions. That prong requires showing a violation of “established public policy” or

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business practices that are “immoral, unethical, oppressive or unscrupulous and cause injury to

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consumers, which outweigh its benefits.” McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457,

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1473 (2006). Plaintiff will be able to show a violation of this prong with common evidence,

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because the claims all stem from the same uniform defect that creates similar safety risks across

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all Class Vehicles and the same conduct of Chrysler related to the defect and customers of Class

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Vehicles. See Keegan, 284 F.R.D. at 533 (“all class members received the same information

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from defendant[] regarding the purported defect – which is to say, no information[.]”; see also

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Parkinson, 258 F.R.D. at 596 (predominance satisfied as to all three UCL prongs in case

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involving defectively designed and uniformly used clutch flywheel); see also Salas, 2019 WL

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1940619, at *13-14 (predominance satisfied as to UCL and CLRA claims involving defect with

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vehicle HVAC system leading to foul odors and potential mold). Plaintiff has put forth experts

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who opined that the Unintended Deployment of the AHR Systems pose great risks to consumers.

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Experts have found that the AHR defect can cause injuries, such as concussions, and can cause
-11ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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drivers to be distracted, potentially leading to wrecks and creating a safety risk. ECF No. 54-4.

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Finally, Plaintiff has produced credible evidence that Chrysler’s uniform practice of refusing to

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cover the cost of an AHR repair outside of the warranty period, creates a potential safety risk

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since many consumers who cannot afford a repair may remove their headrests, drive with it

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deployed, or strap it shut. Hence, the question of whether the Unintended Deployments create a

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safety risk is a common one that can be answered in one stroke by a jury. See Wolin, 617 F.3d at

7

1172.

8
9

To establish that Chrysler has engaged in an “unlawful” act or practice, Plaintiff must
show an underlying violation of another law. Keegan, 284 F.R.D. at 533. Here, Plaintiff

10

predicates his UCL unlawful act claim on violations of the CLRA and the breach of implied

11

warranty under the Song-Beverly Warranty Act. Thus, predominance is satisfied with respect to

12

the UCL for the same reasons it is satisfied for those claims.

13

For similar reasons, Plaintiff satisfies predominance with respect to his CLRA claim.

14

Among the deceptive acts and practices prohibited by the CLRA are: (i) representing that goods

15

(i.e. Vehicles) have characteristics or benefits, which they do not have (section 1770(a)(5)); (ii)

16

representing that goods are of a particular standard, quality, or grade, when they are of another

17

(section 1770(a)(7)); and (iii) advertising goods with the intent not to sell them as advertised

18

(section 1770 (a)(9)). And, like the UCL, the CLRA prohibits fraudulent omissions. See Salas,

19

2019 WL 1940619, at *7; see also Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th

20

824, 833 (2006).

21

For a CLRA claim, Plaintiff has to show that Chrysler had a duty to disclose an alleged

22

defect because Defendant had exclusive knowledge of “material facts.” Collins v. eMachines,

23

Inc., 202 Cal. App. 4th 249, 255-56 (2011). This duty is not limited by an express warranty if the

24

nondisclosure creates an “unreasonable safety risk.” See, e.g., In re Toyota Motor Corp., 754 F.

25

Supp. 2d 1145, 1191 n.25 (C.D. Cal. 2010) (“[t]he risk of injury … is the type of ‘unreasonable

26

risk’ that leads to a duty to disclose under California law”). A CLRA claim also “requires each

27

class member to have an actual injury caused by the unlawful practice.” Keegan, 284 F.R.D. at

28

529. Also like the UCL, however, causation on a class-wide basis “may be established by
-12ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

1

materiality.” Id. An omission is material if “a reasonable [person] would attach importance to its

2

existence or nonexistence in determining his choice of action in the transaction in

3

question.” Id. Because materiality is determined according to a reasonable person standard, the

4

question of whether the omitted information is material is a common question of fact suitable for

5

treatment in a class action. See id. at 530-31; Chamberlan, 402 F.3d at 956 (identifying as a

6

common, predominant issue “whether the facts that [Defendant] allegedly failed to disclose were

7

material.”); see also Tait, 289 F.R.D. at 480 (“claims under the UCL, … and CLRA [are] ideal for

8

class certification because they will not require the court to investigate class members’ individual

9

interaction with the product”).
As to the safety issue related to the UCL and CLRA, Plaintiff proffered opinions from

10
11

expert, Dr. Francisco Biondi, a professor of Applied Cognition and Cognitive Ergonomics, who

12

stated that a noisy, forceful Unexpected Deployment of an AHR System can lead to driver

13

distraction. ECF No. 54-4. Dr. Biondi, who has conducted extensive research in the area of

14

distracted driving, has reviewed scores of complaints from consumers who have reported

15

inadvertent headrest deployments and has concluded that an Unexpected Deployment can result

16

in driver distraction that could lead to a vehicle accident.5
In addition, Dr. Mariusz Ziejewski, a biomechanical engineer who has published

17
18

numerous studies concerning the dynamics of head injuries, conducted testing on behalf of

19

Plaintiff by deploying headrests against a crash test dummy. Talley Decl. ISO Reply, ECF No.

20

69, Ex. Y. Dr. Ziejewski tested more than 140 combinations to identify positions that were most

21

likely to cause injury. Id. Based on his testing, Dr. Ziejewski concluded that “an inadvertently

22

deployed headrest has the potential to cause a mild traumatic brain injury in certain individuals.”

23

Id.

24

Because Plaintiff contends the common defect poses a safety risk (itself a common

25

question), Chrysler is incorrect that the individual questions of whether Chrysler’s alleged

26

omissions were material and whether class members relied on Chrysler’s representations

27
28

5

The Court notes that this conclusion is also supported by common sense. Having a
headrest unexpectedly deploy while operating a motor vehicle would undoubtedly cause a great
distraction with the potential to lead to catastrophic results.
-13ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

1
2

predominates and precludes class certification.
Chrysler’s contention that individual inquiries are required to determine when each class

3

member became aware of the AHR System defect also fails. Plaintiff puts forth a theory of

4

liability premised on Chrysler’s omissions. In such an instance, individual questions about “when

5

class members actually discovered or ‘should have discovered’ the elements of their claims do

6

not predominate.” Tait, 289 F.R.D. at 485. Because “common proof includes Defendant’s failure

7

to inform consumers of the design defect,” the question of whether Chrysler knew about and

8

failed to disclose the defect predominates Plaintiff’s CLRA and UCL claims. Id. at 485-86; see

9

also Chamberlan, 402 F.3d at 962 (holding in a CLRA claim that predominant common issues

10

existed as to “whether [defendant] was aware of alleged design defects” and “whether [defendant]

11

had a duty to disclose its knowledge.”).

12

Here, as in Chamberlan, the predominance of common issues is “readily apparent.” 402

13

F.3d at 962 (affirming class certification where district court identified such common issues as

14

“(1) whether the design . . . was defective; (2) whether Ford was aware of the alleged design

15

defects; (3) whether Ford had a duty to disclose its knowledge; (3) whether it failed to do so; (5)

16

whether the facts that Ford allegedly failed to disclose were material; and (6) whether the alleged

17

failure to disclose violated the CLRA.”). Common proof can establish the elements of the CLRA

18

claim, such as whether Chrysler had a duty to disclose the defect in the AHR System, whether

19

there was an unreasonable safety risk, and whether consumers would find such an omission

20

material in their transactions.

21
22

Breach of Implied Warranty Claims
The Song-Beverly Act provides that “every sale of consumer goods that are sold at retail

23

in [California] shall be accompanied by the manufacturer’s and retail seller’s implied warranty

24

that goods are merchantable,” Cal. Civ. Code section 1792, which means here that goods are “fit

25

for the ordinary purpose for which such goods are used.” Id. § 1791.1(a)(2). For vehicles, the

26

question “is whether the vehicle is fit for driving.” Keegan, 284 F.R.D. at 537. The warranty of

27

merchantability is met if the vehicle is “in safe condition and substantially free of defects.” See

28

Isip v. Mercedes-Benz USA, LLC, 155 Cal. App. 4th 19, 25 (2007). “The implied warranty of
-14ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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merchantability may be breached by a latent defect undiscoverable at the time of the sale.” Mexia

2

v. Rinker Boat Co., 174 Cal. App. 4th 1297, 1304-5 (2009).

3

Here, all Class Vehicles were sold with the same latent defect and the same likelihood of

4

the AHR System experiencing an Unintended Deployment and the safety risks that come with

5

such deployment. This can be shown by common evidence. Moreover, the Unintended

6

Deployments and cracking of the headrests are more likely to occur as time progresses. That

7

some Class Vehicles have not yet experienced problems associated with the AHR System is

8

insufficient to defeat predominance on this and the other claims brought by the class. See Wolin,

9

617 F.3d at 1773 (“proof of the manifestation of the defect is not a prerequisite to class

10

certification.”). The court in Keegan illustrated how the manifestation of the defect was a “merits

11

inquiry” that was particularly suited to resolution as a class action.” See 284 F.R.D. at 536. In

12

this case, the manifestation of the defect is also a merits inquiry that is particularly suited to be

13

determined on a class basis. See id.

14
15

Breach of Express Warranty
Predominance is satisfied under the breach of express warranty claims. To prove breach

16

of express warranty under the U.C.C., Plaintiff must show that the seller “(1) made an affirmation

17

of fact or promise or provided a description of its goods; (2) the promise or description formed

18

part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused

19

injury to the plaintiff.” Keegan v. American Honda Motor Co., Inc., 838 F. Supp. 2d 929, 949

20

(2012) (citation omitted). Here, Chrysler furnished class members with a standard warranty that

21

“covers the cost of all parts and labor needed to repair any item on your vehicle when it left the

22

manufacturing plant that is defective in material, workmanship or factory preparation. . . . You

23

pay nothing for these repairs. These warranty repairs or adjustments – including all parts and

24

labor connected with them – will be made by your dealer at no charge, using new or

25

remanufactured parts.” Docket 54-1 at p. 28.

26

Plaintiff’s claim is that Chrysler breached this warranty by replacing failed headrests with

27

not-yet-failed, but still defective headrests, and that Chrysler is obligated to provide all current

28

owners replacement, defect-free headrests.
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ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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The core liability question is common to all proposed class members: whether the Class

2

Vehicles are defective such that Chrysler’s replacements did not render the Vehicles non-

3

defective. Every liability element is common. First, the terms of the standard warranty do not

4

vary materially, if at all, among class members. Second, the promise-to-repair, the core of any

5

warranty, either was or was not part of the basis of the bargain for all class members. Third,

6

every class member has an identical claim for breach—they are entitled to replacement of their

7

defective headrests with non-defective headrests. And fourth, every Class Vehicle contains

8

defective headrests and so every class member has been injured by the breach.

9

Not all class members received deficient replacement headrests under the warranty, and so

10

some class members, but not all, have out-of-pocket costs recoverable upon proving the merits of

11

their express warranty claims. But this slight variation in damages is no bar to class certification.

12

Indeed, the Supreme Court and Ninth Circuit have each held expressly that even when all

13

damages require individual hearings (unlike in this case), it does not defeat class certification.

14

Leyva v. Medline Indus., Inc., 716 F.3d 510, 513-14 (9th Cir. 2013).
Damages Model

15
16

When moving for class certification, a plaintiff seeking to prove damages on a classwide

17

basis “need only show that such damages can be determined without excessive difficulty and

18

attributed to their theory of liability.” Just Film, Inc., 847 F.3d at 1121; see also Comcast

19

Corp. v. Behrend, 569 U.S. 27, 35 (2013). Plaintiff’s damages model need not be perfect and it

20

need not be “precisely correct.” See Vaccarino v. Midland Nat’l Life Ins. Co., No. 2:11-CV-

21

05858, 2014 WL 572365, at *10-13 (C.D. Cal. Feb. 3, 2014) (“Comcast requires that courts

22

determine whether damages are susceptible of class-wide measurement, not whether the

23

measurement is precisely correct.”)

24

Here, Plaintiff’s proffered expert, Susan Thompson, C.P.A., a certified public accountant

25

who has opined on similar damage models for classes that have been certified in similar cases,

26

see Salas, 2019 WL 1940619, at *11, developed a damages model that provides a reliable and

27

generally accepted methodology for determining reasonable damages on a classwide basis. ECF

28

No. 54-5. Specifically, she opines that in order for each class member to receive the “benefit of
-16ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

1

their bargain” they should receive sufficient compensation to allow them to remediate the defect.

2

Significantly, the evidence shows that defective headrests cannot be “repaired,” but instead both

3

headrests in each vehicle must be replaced to remove the risk of a dangerous failure, and Ms.

4

Thompson calculates damages accordingly. Should the fact finder determine that the original

5

AHR System had some value even in a defective state, Ms. Thompson also has a damages model

6

that will account for that scenario. See ECF No. 54-5 (Thompson Report) ¶ 26 (“Plaintiffs

7

believe the defective AHRs, as originally sold, should not be attributed value under the benefit of

8

the bargain model. However, if the finder of fact concludes that the original AHR had some

9

value, [Thompson] has prepared a classwide methodology to account for the ‘useful life’ of the

10

AHRs. This methodology could also be applied to Plaintiffs who have incurred out-of-pocket

11

expenses to take into account the value, if any, of the defective part that was replaced.”).

12

Chrysler contends that Plaintiff has not met the requirements for class certification

13

because Plaintiff’s theory of damages is unsatisfactory. But Chrysler’s arguments here have been

14

entirely rejected by the Ninth Circuit in reversing the central case Chrysler relied upon in its brief.

15

See Nguyen v. Nissan North Am. Inc., 932 F.3d 811 (9th Cir. July 26, 2019). In that case, plaintiff

16

alleged a defect hidden in the vehicle’s hydraulic clutch system. Id. at 813. The district court

17

denied plaintiff’s motion for class certification, asserting predominance was not satisfied due to

18

an improper damages model that was based on the cost to replace the defective clutch with a non-

19

defective clutch. See id. at 815-16. Ms. Thompson’s damages model is parallel to the model in

20

Nguyen. The Ninth Circuit reversed the district court shortly after Defendant filed its opposition

21

in this case, and instead found that the class should be certified on the CLRA, Song-Beverly Act,

22

and Magnuson-Moss Act claims. The Ninth Circuit ruled, in part:

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24
25
26
27
28

Plaintiff alleges that Nissan concealed the clutch system’s defects from consumers,
that the defect was material because it adversely affected the “safety and reliability”
of the Class Vehicles, and that he did not get what he bargained for—a transmission
“fit for [its] intended use.” A benefit-of-the-bargain model of damages aligns with
this legal theory; that measure
is concerned with satisfying the expectancy interest of the defrauded
plaintiff by putting him in the position he would have enjoyed if the
false representation relied upon had been true; it awards the
-17-

ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

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difference in value between what the plaintiff actually received and
what he was fraudulently led to believe he would receive.
Stout v. Turney, 22 Cal.3d 718, 150 Cal.Rptr. 637, 586 P.2d 1228, 1232 (1978).
Plaintiff seeks to recover damages equaling the amount he purportedly overpaid in
purchasing a vehicle with a defective clutch; he “is not seeking a full refund for the
vehicle purchase, but for the cost of replacing [ ] a defective component, which is a
proxy for [his] overpayment of the vehicle at the point of sale.” Whether his
proposed calculation of the replacement cost is accurate, whether the clutch was
actually defective, and whether Nissan knew of the alleged defect are merits
inquiries unrelated to class certification. For now, it is sufficient that Plaintiff has
demonstrated the nexus between his legal theory—that Nissan violated California
law by selling vehicles with a defective clutch system that was not reflected in the
sale price—and his damages model—the average cost of repair.
See id. at 821. The Nguyen Court also noted that “class wide damages calculations under

10

the . . . CLRA are particularly forgiving. California law ‘requires only that some reasonable basis

11

of computation of damages be used, and the damages may be computed even if the result is an

12

approximation.’” Id. at 818.

13

Ms. Thompson’s damages model is similar to the model in Nguyen. Moreover, as Ms.

14

Thompson testified in her deposition, her calculations can be readily adjusted once the

15

appropriate repair costs and time are obtained from Chrysler and related third-parties. Here, as

16

there, whether the proposed calculation is accurate, whether the AHR was actually defective and

17

whether Defendant knew of the defect “are merits inquiries unrelated to class certification.” Id.

18

at 821. For now, Plaintiff has sufficiently established a nexus between his theories of liability

19

and his damages model. Rule 23(b)(3)’s predominance requirement is satisfied.

20
21

Statute of Limitations Concerns
Chrysler’s theory that statutes of limitations prevent class certification also fails.

22

Adjudication of individualized affirmative defenses typically does not defeat predominance under

23

Rule 23(b)(3) because “[t]he Court has various tools at its disposal to manage resolution of those

24

issues to the extent that they arise.” In re Myford Touch Consumer Litigation, No. 13-cv-03072,

25

2018 WL 3646895, at *2 (N.D. Cal. Aug. 1, 2018). Even if statute-of-limitations questions must

26

be addressed individually - and Defendant has not provided evidence establishing that they must

27

be - common questions, including the presence of a defect and Chrysler’s knowledge of and

28

failure to disclose the defect, remain central to the issues in this case.
-18ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

1

Predominance is not defeated because the doctrines used by Plaintiff for “tolling the

2

statute of limitations,” such as the doctrine of fraudulent concealment, involve proof “common to

3

the defendants,” namely, “the act of concealing” defendant’s wrong. See Tait, 289 F.R.D. at 485.

4

(citing In re Linerboard Antitrust Litigation, 305 F.3d 145, 163 (3d Cir. 2002). Indeed, “[c]ourts

5

have been nearly unanimous ... in holding that possible differences in the application of a statute

6

of limitations to individual class members, including the named plaintiffs, does not preclude

7

certification of a class action.” Id. (quoting Schramm v. JPMorgan Chase Bank, N.A., LA CV09–

8

09442 JAK, 2011 WL 5034663, *11-12 (C.D. Cal. Oct. 19, 2011) (holding that statute of

9

limitations defense did not result in individual inquiries about when class members had actual or

10

inquiry notice of their claims and noting that defendant’s “speculation that some class members’

11

claims may be barred on the basis of actual knowledge is not sufficient to defeat certification”).

12

For all the reasons set forth above, the predominance requirement is met.

13

Superiority. Plaintiff meets the superiority requirement of Rule 23(b)(3) because, among

14

other reasons, “recovery on an individual basis would be dwarfed by the cost of litigating on an

15

individual basis.” Wolin, 617 F.3d at 1175. In this case, each class member is entitled to recover

16

only a small amount of money—potentially less than $800—while litigation costs for each

17

individual class member would be substantial, especially given the need for expert analysis.

18

Given this fact, class members are unlikely to pursue individual actions. Moreover, the array of

19

common questions and legal theories here renders adjudication in a single action both effective

20

and efficient. And while Chrysler has identified some issues that affect some class members but

21

not others, such as statutes of limitations or whether Chrysler sufficiently fixed the defect after

22

2017, such issues do not make class certification inappropriate. These issues are insignificant

23

relative to the central, common questions that will drive resolution of class members’ claims. Nor

24

does the need to resolve such questions present intractable manageability problems. Thus, there

25

are not any significant manageability issues here. See id. at 1175-76 (discussing the factors

26

outlined in Rule 23(b)(3)(A-D) as they apply to a case raising a common issue of design defect

27

and misrepresentation).

28

Rule 23(b)(2) class. Plaintiff also seeks to certify a class under Fed. R. Civ. P. 23 (b)(2)
-19-

ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

1

for injunctive relief as a remedy on the class’s express warranty claims. Because the certified

2

23(b)(3) class may seek injunctive relief, the Court does not certify a separate 23(b)(2) class at

3

this time. See Salas, 2019 WL 1940619, at *14 (“Under the circumstances here, it is unnecessary

4

for the court to address whether certification under Rule 23(b)(2) is appropriate here since the

5

court is certifying a class under Rule 23(b)(3).”).
CONCLUSION

6
7

For the foregoing reasons, the Court DENIES Defendant’s Motion to Stay (ECF No. 114)

8

and GRANTS Plaintiff’s Motion for Class Certification and Appointment of Class Representative

9

and Counsel (ECF No. 54). The Court orders the following:

10

1. The Court certifies a Rule 23(b)(3) class and subclass below as to the economic

11

damages claims set forth in the Second Amended Class Action Complaint (ECF No.

12

13) and will not certify any personal injury claims or damages. The class and subclass

13

are defined as:

14

(1) A California Class consisting of all persons in California who currently own or

15

lease, or who have owned or leased any Class Vehicle manufactured by Chrysler, or

16

any of its subsidiaries or affiliates, that is equipped with an Automatic Head Restraint

17

System; (2) a California CLRA Subclass consisting of all members of the California

18

Class who are “consumers” within the meaning of California Civil Code § 1761(d).

19

The Court excludes from the Class and Subclass: Chrysler, its employees, officers,

20

directors, and legal representatives; Class Counsel and their employees; and the

21

judicial officers and their immediate family members and associated Court staff

22

assigned to this case.

23

2. The Court designates as Class Vehicles the following model and year FCA/Chrysler

24

vehicles: 2010-2018 Dodge Journey; 2010-2011 Dodge Nitro; 2010-2012 Jeep

25

Liberty; 2010-2017 Jeep Patriot or Compass; 2010-2012 Dodge Caliber; 2010-2018

26

Dodge Caravan; 2011-2018 Dodge Durango; 2011-2018 Jeep Grand Cherokee; and

27

2010-2014 Sebring/Avenger.

28

3. The Court hereby appoints Shawn Alger as the representative of the certified Class
-20-

ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB

1
2
3
4
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and Subclass.
4. The Court hereby appoints the law firms of Lieff Cabraser Heimann & Bernstein, LLP
and Kershaw, Cook and Talley PC as Class Counsel for the Class and Subclass.
5. The Court orders Class Counsel to prepare notice to the Class and Subclass and submit
the notice and plan for notice distribution to the Court.
IT IS SO ORDERED.
Dated: February 18, 2020

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ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

NO. 2:18-CV-00360-MCE-EFB