Zhang et al v. Subaru of America, Inc.

Filing 15

ORDER by Judge Hamilton granting in part and denying in part 5 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 4/13/2012)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7
8

WELBIN ZHANG, et al.,

9

Plaintiffs,
v.

11
For the Northern District of California

United States District Court

10

SUBARU OF AMERICA, INC., et al.,

12

No. C 12-0857 PJH
ORDER GRANTING MOTION TO
DISMISS IN PART AND DENYING IT
IN PART, AND GRANTING MOTION
TO STRIKE

Defendants.
_______________________________/

13
14

Before the court is defendant Suburu of America, Inc.’s motion to dismiss and/or

15

strike portions of the complaint. Plaintiffs did not file an opposition to the motion within the

16

time allowed under the Civil Local Rules of this court. Having reviewed the complaint and

17

the defendant’s papers, and the relevant legal authority, the court hereby GRANTS the

18

motion in part and DENIES it in part as follows.

19

This product liability action arises out of a January 4, 2010 collision between an

20

Alameda-Contra Costa Transit District bus (“the AC Transit bus”) and a 1999 Suburu

21

Legacy automobile (“the vehicle”) owned and operated by plaintiffs Weibin Zhang and Wei

22

Cui in Oakland, California. Cplt ¶ 4. Plaintiffs allege that the AC Transit bus struck the

23

vehicle on the passenger side, causing them to be “thrown about their vehicle” and injured.

24

Id.

25

Plaintiffs allege further that the force of the collision should have caused the

26

passenger-side airbag to deploy. Cplt ¶ 5. However, plaintiffs allege, the air bag did not

27

deploy. Plaintiffs assert that prior to the collision, they had purchased the vehicle from “a

28

private seller, whose name is not currently known” to them. Id.

1

Plaintiffs filed this action on January 4, 2012 in the Superior Court of California,

2

County of Alameda, against Suburu of America, Inc. (“Suburu”), and 40 DOE defendants,

3

alleging causes of action for (1) strict product liability, (2) negligence, (3) breach of

4

express warranty, (4) breach of implied warranty, (5) negligent misrepresentation, and

5

(6) intentional misrepresentation/fraudulent concealment.

6

Suburu removed the case on February 22, 2012, alleging diversity jurisdiction. On

7

February 24, 2012, Suburu filed the present motion to dismiss the fourth, fifth, and sixth

8

causes of action for failure to state a claim, and to strike certain allegations in the

9

complaint.
1.

11
For the Northern District of California

United States District Court

10

Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

12

alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

13

Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen.

14

Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for

15

failure to state a claim, a complaint generally must satisfy only the minimal notice pleading

16

requirements of Federal Rule of Civil Procedure 8.

17

Rule 8(a)(2) requires only that the complaint include a “short and plain statement of

18

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specific

19

facts are unnecessary – the statement need only give the defendant “fair notice of the claim

20

and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing

21

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

22

All allegations of material fact are taken as true. Id. at 94. However, legally

23

conclusory statements, not supported by actual factual allegations, need not be accepted.

24

See Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct. 1937, 1949-50 (2009). A plaintiff's

25

obligation to provide the grounds of his entitlement to relief “requires more than labels and

26

conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

27

Twombly, 550 U.S. at 555 (citations and quotations omitted). Rather, the allegations in the

28

complaint “must be enough to raise a right to relief above the speculative level.” Id.
2

1

A motion to dismiss should be granted if the complaint does not proffer enough facts

2

to state a claim for relief that is plausible on its face. See id. at 558-59. “[W]here the

3

well-pleaded facts do not permit the court to infer more than the mere possibility of

4

misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is

5

entitled to relief.’” Iqbal, 129 S.Ct. at 1950.

6

The fourth cause of action for breach of implied warranty is asserted against Suburu

7

and against DOES 1 through 20. Suburu argues that plaintiffs cannot maintain a cause of

8

action against it for breach of implied warranty, because plaintiffs allege in the complaint

9

that the vehicle was not purchased from Suburu, and therefore no privity of contract existed

11
For the Northern District of California

United States District Court

10

between plaintiffs and Suburu.
The motion is GRANTED. A warranty is a contractual term concerning some aspect

12

of the sale of goods – such as title to the goods or their quality or quantity. Windham at

13

Carmel Mt. Ranch Ass’n v. Superior Court, 109 Cal. App. 4th 1162, 1168 (2003). A

14

warranty may be either express or implied. Id. An implied warranty is based on implied

15

representations rather than on promises, and may be created by statute or case law. Id.

16

Under California law, a plaintiff alleging injury by a defective product can proceed

17

against a manufacturer for breach of implied warranty in a sales contract only if there is

18

privity between the plaintiff and the manufacturer. Burr v. Sherwin Williams Co., 42 Cal. 2d

19

682, 695 (1954); see also Osborne v. Suburu of America, Inc., 198 Cal. App. 3d 646, 656

20

(1988). There is no privity between the original seller and a subsequent purchaser who

21

was not a party to the original sale. Burr, 42 Cal. 2d at 695.

22

Here, plaintiffs did not purchase the vehicle from Suburu, but rather from a “private

23

party” whose identity is not known. Because plaintiffs did not purchase the vehicle from

24

Suburu, there can be no privity between plaintiffs and Suburu, and thus, plaintiffs cannot

25

state a claim for breach of implied warranty. The dismissal of the fourth cause of action is

26

with prejudice, as the court finds that amendment would be futile.

27
28

The fifth cause of action for negligent misrepresentation and the sixth cause of
action for intentional misrepresentation or fraudulent concealment are asserted against
3

1

DOES 21 through 40. Suburu asserts that these two causes of action must be dismissed

2

because they fail to allege fraud with particularity, as required by Federal Rule of Civil

3

Procedure 9(b). While the court agrees that these claims are inadequately pled, the motion

4

is DENIED because the claims are not asserted against Suburu, and Suburu thus has no

5

basis to seek dismissal.

6

2.

Motion to Strike

7

Federal Rule of Civil Procedure 12(f) provides that the court “may order stricken

8

from any pleading any insufficient defense or any redundant, immaterial, impertinent, or

9

scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are not favored and “should
not be granted unless it is clear that the matter to be stricken could have no possible

11
For the Northern District of California

United States District Court

10

bearing on the subject matter of the litigation.” Colaprico v. Sun Microsystem, Inc., 758

12

F.Supp. 1335, 1339 (N.D. Cal. 1991). When a court considers a motion to strike, it “must

13

view the pleading in a light most favorable to the pleading party.” In re 2TheMart.com, Inc.

14

Sec Lit., 114 F Supp. 2d 955, 965 (C.D. Cal. 2000).

15

The function of a 12(f) motion to strike is to avoid the expenditure of time and money

16

that must arise from litigating spurious issues by dispensing with those issues prior to trial .

17

. . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quotation and

18

citation omitted). In order to determine whether to grant a motion to strike under Rule 12(f),

19

the court must determine whether the matter the moving party seeks to have stricken is (1)

20

an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or (5) scandalous. Id.

21

at 973-74.

22

In the first cause of action for strict liability in tort, plaintiffs allege that the vehicle and

23

its component parts (including airbags and sensors) were defective and unsafe. See Cplt

24

¶¶ 7-10. They allege further that “[b]y reason of the premises, [p]laintiffs suffered the loss

25

of their unborn child as [p]laintiff Weibin Zhang was pregnant at said time and [p]laintiff Wei

26

Cui was the father of that unborn child.” Cplt ¶ 14. Suburu seeks an order striking as

27

immaterial the allegation in ¶ 14 (which is also incorporated by reference into all other

28

causes of action), on the basis that California does not recognize a cause of action for the
4

1
2

wrongful death of an unborn fetus.
The motion is GRANTED. Under California law, a cause of action cannot be

3

maintained for the death of a stillborn fetus, because a fetus is not a “person” within the

4

meaning of the wrongful death statute. See Justus v. Atchison, 19 Cal. 3d 564, 580 (1977),

5

disapproved on other grounds, Ochoa v. Superior Court, 39 Cal. 3d 159 (1985). While

6

plaintiffs have not alleged a wrongful death claim, per se, they do appear to be attempting

7

to include this allegation in each of their causes of action. Because the court finds the

8

allegation about the death of the fetus to be immaterial to the claims asserted in the

9

complaint, the court agrees that it must be STRICKEN.
In accordance with the foregoing, the motion to dismiss the fourth cause of action for

11
For the Northern District of California

United States District Court

10

breach of implied warranty, asserted against Suburu, is GRANTED. The dismissal is with

12

prejudice. The motion to dismiss the fifth and sixth causes of action is DENIED, as those

13

claims are not asserted against Suburu. The motion to strike the allegation regarding the

14

death of the fetus is GRANTED.

15

The May 2, 2012 hearing date is VACATED.

16
17

IT IS SO ORDERED.

18

Dated: April 13, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

19
20
21
22
23
24
25
26
27
28
5