Banks et al v. Nissan North America, Inc. et al

Filing 34

ORDER by Judge Hamilton Granting 22 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 12/19/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRANDON BANKS, et al.,
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Plaintiffs,

No. C 11-2022 PJH

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v.

ORDER GRANTING
MOTION TO DISMISS

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For the Northern District of California

United States District Court

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NISSAN NORTH AMERICA, INC.,
et al.,

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Defendants.
_______________________________/

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Defendant’s motion to dismiss came on for hearing on December 14, 2011 before

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this court. Brandon and Erin Banks (“plaintiffs” or “the Banks”) appeared through their

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counsel, Kirk Wolden and Jerome Tapley. Defendant Nissan North America, Inc. (“Nissan ”

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or “defendant”) appeared through its counsel, G. Charles Nierlich, and Rachel Flipse.

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Having read all the papers submitted and carefully considered the relevant legal authority,

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the court hereby GRANTS defendant’s motions, for the reasons stated at the hearing, and

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summarized as follows:

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1.

Plaintiffs’ claims under California’s Unfair Competition Law (“UCL”) and the

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Consumer Legal Remedies Act (“CLRA”), which are premised on defendants’ purportedly

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unlawful concealment of the defects involved with the Delta Stroke Sensor, fail to state

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viable causes of action. While the court finds that plaintiffs have satisfactorily alleged that

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the Delta Stroke Sensor defect posed an unreasonable risk of physical injury to plaintiffs

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and consumers pursuant to Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824,

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834 (2006), plaintiffs’ allegations that defendant fraudulently concealed the Delta Stroke

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Sensor defect from consumers fail to meet the particularity requirements of Federal Rule of

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Civil Procedure 9(b). See Hahn v. Mirda, 147 Cal. App. 4th 740, 748 (2007)(setting forth

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elements of fraudulent concealment); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d

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1097, 1103-05 (9th Cir. 2003)(the heightened pleading standards of Rule 9(b) apply to

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allegations of fraud and allegations that sound in fraud, including false misrepresentations).

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Specifically, plaintiffs fail to allege in sufficient detail defendant’s knowledge of the

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unreasonable safety risk posed by the Delta Stroke Sensor, and defendant’s intent to

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conceal this knowledge from consumers. Thus, plaintiffs’ UCL and CLRA claims are

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DISMISSED. The dismissal is with leave to amend, however, so that plaintiffs may re-

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allege fraudulent concealment with the requisite particularity.
2.

To the extent plaintiffs have asserted a cause of action for unjust enrichment,

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For the Northern District of California

United States District Court

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defendant correctly notes that "there is no cause of action in California for unjust

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enrichment." Melchior v. New Line Prods., Inc., 106 Cal. App. 4th 779, 793 (2003); see

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also McBride v. Boughton, 123 Cal. App. 4th 379, 387 (2004)("Unjust enrichment is not a

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cause of action . . . or even a remedy, but rather . . . a general principle, underlying various

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legal doctrines and remedies. . . . It is synonymous with restitution."). As such, plaintiffs

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have not asserted a viable cause of action. Plaintiffs’ claim for unjust enrichment is

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therefore DISMISSED. The dismissal is with prejudice.

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Plaintiffs may file an amended complaint no later than January 11, 2012.

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Defendants’ response thereto shall be filed no later than February 8, 2010.

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IT IS SO ORDERED.

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Dated: December 19, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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