Casey v. General Motors, LLC ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 REBECCA CASEY, individually, Case No.: 20-cv-299-WQH-MSB and on behalf of a class of 11 similarly situated individuals, ORDER 12 Plaintiff, 13 v. 14 GENERAL MOTORS, LLC; and 15 DOES 1-10, inclusive, 16 Defendants. 17 HAYES, Judge: 18 The matter before the Court is the Motion to Dismiss Plaintiff’s First Amended Class 19 Action Complaint filed by Defendant General Motors LLC. (ECF No. 16). 20 I. PROCEDURAL BACKGROUND 21 On February 18, 2020, Plaintiff Rebecca Casey filed a Class Action Complaint 22 against Defendant General Motors LLC (“GM”). (ECF No. 1). On September 15, 2020, 23 Casey filed an Amended Class Action Complaint (“Amended Complaint”) against 24 Defendants GM and Does 1 through 10, alleging that Defendants concealed and failed to 25 disclose a design defect in the engine bay fuse block of vehicles manufactured by GM 26 between 2013 to 2017. (ECF No. 14). 27 On September 29, 2020, GM filed a Motion to Dismiss the Amended Complaint. 28 (ECF No. 16). GM moves to dismiss the Amended Complaint under Rule 12(b)(6) of the 1 Federal Rules of Civil Procedure for failure to state a claim upon which relief can be 2 granted. On October 30, 2020, Casey filed an Opposition to the Motion to Dismiss. (ECF 3 No. 19). On November 13, 2020, GM filed a Reply. (ECF No. 20). 4 On March 2, 2021, the Court ordered Casey to show cause why this case should not 5 be dismissed for lack of subject matter jurisdiction. (ECF No. 21). On March 19, 2021, 6 Casey filed a Response to the Order to Show Cause with documents supporting Casey’s 7 assertions that the parties are minimally diverse, the class has more than 100 members, and 8 the amount in controversy exceeds $5,000,000. (ECF No. 24). On March 22, 2021, Casey 9 filed a supporting Declaration. (ECF No. 25). Casey has shown cause why this case should 10 not be dismissed. 11 II. ALLEGATIONS IN THE AMENDED COMPLAINT 12 On December 9, 2016, Casey purchased a used 2014 Buick Enclave (“Vehicle”) 13 from GM franchise dealership Hoehn Buick, GMC, Cadillac (“Hoehn”) in Carlsbad, 14 California. The Vehicle had been sold new on October 13, 2013. When Casey purchased 15 the Vehicle, it had been driven 70,657 miles. Before deciding to purchase the Vehicle, 16 “Casey reviewed the window sticker and relied on its advertisements, including details of 17 the existence and length” of the Vehicle’s factory warranty. (ECF No. 14 ¶ 3). 18 At the time the [ ] Vehicle was sold new, the [ ] Vehicle came with a 4-year 50,000-mile basic warranty, a 6-year 70,000-mile powertrain warranty, a 7- 19 year 70,000-mile California emissions warranty, an 8-year 80,000-mile 20 federal emissions warranty for certain emissions related components, and a 6- year unlimited mileage warranty for certain types of rust. Thus, at the time 21 that Casey purchased the [ ] Vehicle, the [ ] Vehicle was still covered by 22 portions of the original factory warranty. 23 (Id. ¶ 2). 24 On April 30, 2018, at 89,373 miles, Casey brought the Vehicle to Hoehn for repair. 25 On approximately five occasions, the Vehicle lost power while in motion, and the “stability 26 and traction warning illuminated,” requiring Casey to pull over and restart the Vehicle. (Id. 27 ¶ 52). Hoehn “identified Fault Code P1682, and found that the fuse block ignition bus, also 28 1 known as both Terminal 51 and the Engine Relay, was loose.” (Id. ¶ 54). Hoehn attempted 2 to fix the problem by reinstalling and resecuring the engine bay fuse block. “The repair did 3 not work, and the [ ] Vehicle was brought back by Casey on June 20, 2018 with the same 4 symptoms.” (Id.). Hoehn diagnosed the engine bay fuse block as “defective” and replaced 5 it. (Id. ¶ 55). Casey was required to pay for the repairs. 6 In certain GM vehicles, including Casey’s Vehicle, there is an engine bay fuse block 7 located on the passenger side under the hood. The function of a fuse block is to control and 8 distribute electrical energy from a vehicle’s battery or generator throughout the vehicle. 9 “The functionality of a fuse block is critical” to vehicle safety because the fuse block 10 distributes energy “to a variety of safety related components, such as air bags, different 11 engine components, the brakes, brake lights, headlights, etc.” (Id. ¶ 23). 12 The engine bay fuse block provides electrical energy to different engine components 13 using a relay. The relay plugs into the engine bay fuse block “like a power cord plugs into 14 a power outlet in the wall of a home.” (Id. ¶ 17). To function properly, there must be 15 adequate tension so that the relay’s metal prongs fit tightly into the engine bay fuse block. 16 If the relay is loose, the vehicle can fail to start or can stall, which can cause “the loss of 17 acceleration, the loss of power steering, the loss of power brakes, and several other very 18 unsafe conditions.” (Id. ¶ 21). “A properly designed and constructed fuse block should last 19 the life of a vehicle.” (Id. ¶ 15). 20 GM’s fuse blocks are “mass produced.” (Id. ¶ 22). The engine bay fuse blocks for 21 the following GM products have “virtually the identical layout and design:” 1) the 2007- 22 2010 Saturn Outlook; 2) the 2008-2017 Buick Enclave—including Casey’s Vehicle; 3) the 23 2009-2017 Chevrolet Traverse; 4) the 2007-2016 Chevrolet Acadia; and 5) the 2017 24 Chevrolet Acadia Limited. (Id. ¶ 27). There is a “Fuse Block Defect” in the design, 25 materials, and assembly of these engine bay fuse blocks “wherein the fuse block terminals 26 fail to maintain sufficient tension, resulting in relays which are mounted on fuse blocks 27 being loose.” (Id. ¶ 28). “The Fuse Block Defect is the fact that there is poor 28 1 connection/terminal retention.” (Id. ¶ 49). The Fuse Block Defect causes vehicles to stall, 2 lose acceleration, lose power steering, and/or lose power brakes. 3 GM has been aware of the Fuse Block Defect since 2010. “GM’s own documents 4 confirm that consumers have complained for years, predating the sale and lease of the 5 [vehicles with the Fuse Block Defect], that the [ ] [v]ehicles have experienced problems 6 which are and were symptomatic of the Fuse Block Defect.” (Id. ¶ 29). GM has published 7 several service bulletins describing the symptoms of the Fuse Block Defect in vehicles with 8 the common fuse block design, explaining how to diagnose the problem and “purport[ing] 9 to offer [ ] repair[s].” (Id.). 10 The December 8, 2010, service bulletin applies to “2011 and prior GM Passenger 11 Cars and Trucks.” (Id. ¶ 30). The bulletin reports customer complaints of “[a]n intermittent 12 no crank/no start, intermittent malfunction indicator lamp (MIL) illumination, intermittent 13 service lamp illumination, and intermittent service message(s) being displayed,” which can 14 be caused by various conditions including “poor connection/terminal retention.” (Id. ¶ 30). 15 The bulletin recommends resolving the conditions by “apply[ing] a dielectric lubricant, and 16 only replac[ing] parts if applying the dielectric lubricant does not resolve the problem.” 17 (Id. ¶ 31). 18 The February 2013 service bulletin applies to “2014 and prior GM cars and light 19 duty trucks.” (Id. ¶ 34). The bulletin identifies diagnostic Fault Codes P1682 and P0689, 20 which “relate to the ignition circuit and engine stalling” and can, “among other things, [ ] 21 indicate poor connection/terminal retention relating to the . . . Engine Relay, [ ] which is 22 located in the Engine Bay Fuse Block.” (Id. ¶ 35). The bulletin “advis[es] technicians that 23 if they identify certain fault codes, including P1682 and P0689, the technician should test 24 the terminal pin fit and tension” for problems. (Id.). 25 The February 12, 2014, service bulletin applies to the 2008-2014 Buick Enclave, 26 2009-2014 Chevrolet Traverse, the 2007-2014 GMC Acadia, and the 2010 Saturn Outlook, 27 all of which share the common fuse block design. The bulletin “purports to identify the 28 1 root cause of Fault Code P1682” as the use of improperly wired after-market equipment. 2 (Id. ¶ 38). 3 The November 16, 2018, service bulletin applies to the 2013-2014 Buick Enclave, 4 2013-2014 Chevrolet Traverse, and 2013-2014 GMC Acadia, which share the common 5 fuse block design. The bulletin “identifies an ongoing problem with poor 6 connection/terminal retention, causing terminal corrosion.” (Id. ¶ 40). The bulletin reports 7 customer complaints of an “intermittent Service Engine Soon light on with Reduced 8 Engine Power and/or engine stall with P0689 and/or P1682 stored in history.” (Id. ¶ 39). 9 The bulletin identifies the cause of this problem as “Terminal #51 at X3 Connector of 10 Under Hood Fuse Block loose terminal tension with arcing corrosion on terminal #51 of 11 the fuse block.” (Id.). “Terminal 51 is used as a receptacle on the fuse block for an Engine 12 Relay.” (Id. ¶ 44). 13 The November 5, 2019, “Preliminary Information” applies to all GM models 2005- 14 2020. (Id. ¶ 42). The Preliminary Information states that “terminal tension is one of the 15 main culprits” in diagnosing an “intermittent electrical concern.” (Id.). 16 The December 12, 2019, service bulletin applies to the 2013-2017 Buick Enclave, 17 2013-2017 Chevrolet Traverse, 2013-2016 Chevrolet Acadia, and 2017 Chevrolet Acadia 18 Limited, which share the common fuse block design. The bulletin describes an ongoing 19 problem with “engine stall[ing] and/or a reduced engine power message” with stored Fault 20 Codes P1682 or P0689. (Id. ¶ 43). The bulletin states that the cause of this condition “may 21 be poor terminal tension on terminal 51 in X50A fuse block Underhood X3” and directs 22 technicians to “inspect, and if repair is necessary, replace terminal 51 in X50A fuse block 23 – Underhood X3, with a new terminated lead.” (Id.). This condition “is the same condition 24 that resulted in the repair attempts to [ ] Casey[’s] Vehicle . . . .” (Id. ¶ 59). 25 These service bulletins dating back to 2010 “confirm customer complaints which 26 GM attributed to a lack of terminal tension.” (Id. ¶ 47). The service bulletins are 27 “interrelate[d]” because they 28 relate to a common defect which relates to all of the GM vehicles which share 1 the Common Fuse Block Design. The common defect is the Fuse Block Defect. The Fuse Block Defect is the fact that there is poor 2 connection/terminal retention. The poor connection/terminal retention causes 3 the Engine Relay, which is mounted in terminal 51 to be loose, causing intermittent lack of connectivity. 4 5 As a result, the [ ] Vehicles produce Fault Code P689 and Fault Code P1682. Furthermore, the [ ] Vehicles experience engine stalling, as well intermittent 6 no crank/no start, intermittent malfunction indicator lamp (MIL) illumination, 7 intermittent service lamp illumination, and intermittent service message(s) being displayed, [as first identified in the 2010 service bulletin]. 8 9 (Id. ¶¶ 49-50). 10 Before 2019, GM offered “band-aid solutions” to the Fuse Block Defect, including 11 “to pack the area with dielectric lubricant, or blame the problem on after market equipment, 12 to attempt to remedy or at least explain away the poor terminal connection.” (Id. ¶ 31, 47). 13 If the vehicle is no longer under warranty, customers are required to pay for the repairs. 14 GM “failed to take any action to resolve the problem because, based upon a cost benefit 15 analysis, GM has not been financially motivated to resolve the problem.” (Id. ¶ 48). 16 GM has actively concealed the Fuse Block Defect since it became aware of the 17 defect. GM “widely advertises, publishes, publicizes, and disseminates to the public that 18 [its vehicles] are both safe and of good quality.” (Id. ¶ 60). However, the vehicles with the 19 Fuse Block Defect are “not fit for their intended purpose of providing consumers with safe 20 and reliable transportation.” (Id. ¶ 61). GM has failed to disclose the existence of the Fuse 21 Block Defect at the time of purchase or thereafter and has “instead made false statements 22 that [ ] there is no defect relating to” vehicles with the common fuse block design. (Id. ¶ 23 66). As a result, Casey and other consumers have expended money for repairs, have not 24 received the value for which they bargained when they purchased their vehicles, and have 25 experienced a diminished resale value of their vehicles. 26 Casey seeks to represent the following class: 27 All Persons in the State of California who purchased or leased model year 2013 through 2017 Buick Enclave, model year 2013 through 2017 Chevrolet 28 1 Traverse, model year 2013 through 2016 Chevrolet Acadia, and model year 2017 Chevrolet Acadia Limited vehicles (“Class Vehicles”). 2 3 (Id. ¶ 77). Casey further seeks to represent the following subclass: 4 All Class Members who are “consumers” within the meaning of California Civil Code § 1761(d). Excluded from the Class and Sub-Classes are: (1) 5 Defendants, any entity or division in which Defendants has a controlling 6 interest, and its legal representatives, officers, directors, assigns, and successors; (2) the Judge to whom this case is assigned and the Judge’s staff; 7 and (3) persons who have suffered personal injuries as the result of the facts 8 alleged herein. 9 (Id.). 10 Casey and the class bring the following claims against Defendants: 1) fraud by 11 omission; and 2) violation of the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code 12 §§ 1750, et seq. Casey and class seek injunctive relief, declaratory relief, damages, and 13 attorneys’ fees and costs. 14 III. LEGAL STANDARD 15 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 16 to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state 17 a claim for relief, a pleading “must contain . . . a short and plain statement of the claim 18 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 19 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 20 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 21 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted). 22 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 23 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 24 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 25 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 26 court to draw the reasonable inference that the defendant is liable for the misconduct 27 alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ 28 1 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 2 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 3 (alteration in original) (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as 4 true allegations that are merely conclusory, unwarranted deductions of fact, or 5 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 6 2001). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual 7 content, and reasonable inferences from that content, must be plausibly suggestive of a 8 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 9 2009) (citation omitted). 10 Claims sounding in fraud or mistake must additionally comply with the heightened 11 pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure, which requires 12 that a complaint “must state with particularity the circumstances constituting fraud or 13 mistake.” Fed. R. Civ. P. 9(b). The pleader must “identify the who, what, when, where, 14 and how of the misconduct charged, as well as what is false misleading about the 15 purportedly fraudulent statement, and why it is false.” Davidson v. Kimberly-Clark Corp., 16 873 F.3d 1103, 1110 (9th Cir. 2017) (quoting Cafasso, U.S. ex rel. v. Gen. Dynamics C4 17 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)), as corrected (Mar. 12, 2018). “To comply 18 with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of 19 the particular misconduct which is alleged to constitute the fraud charged so that they can 20 defend against the charge and not just deny that they have done anything wrong.” Bly- 21 Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (citation omitted). 22 IV. DISCUSSION 23 GM contends that the Court should dismiss the Amended Complaint because Casey 24 fails to allege a causal connection between the issues her vehicle experienced and the 25 “specific alleged defect identified in the Amended Complaint” of “poor terminal tension 26 in terminal 51 as described in [the February 2019 service] bulletin.” (ECF No. 16-1 at 14- 27 15). GM contends that Casey alleges that the first repair to her Vehicle “involved 28 reconnecting the loose ‘ignition bus,’ not terminal 51,” and Casey “alleges no facts to show 1 that terminal 51 was the reason [the fuse block was replaced in the second repair], as 2 opposed to some other reason.” (Id. at 15-16). GM contends that Casey fails to plausibly 3 allege that GM had knowledge of the alleged defect in terminal 51 prior to the sale of the 4 Vehicle. GM contends that the only service bulletins identifying issues with terminal 51 5 were published in 2018 and 2019, years after Casey purchased the Vehicle and years after 6 the Vehicle was sold new. GM contends that the service bulletins published before the sale 7 of the Vehicle apply to vehicles including those that do not share the common fuse block 8 design and fail to demonstrate GM’s knowledge of any defect with terminal 51.1 GM 9 further contends that Casey fails to plead the essential elements of the claims with 10 particularity under Rule 9(b). GM contends that Casey fails to describe the content of any 11 alleged omission or where the information should have been disclosed. GM contends that 12 Casey fails to identify any advertisements or representations that she relied on prior to 13 purchasing the Vehicle that failed to contain any required information. 14 Casey contends that “GM has sought to redefine the alleged defect so that it focuses 15 specifically on ‘terminal 51’ in the Fuse Block;” however, “the alleged defect as defined 16 in the [Amended Complaint] . . . is the lack of sufficient tension at the engine fuse block 17 terminal.” (ECF No. 19 at 7). Casey contends that that the problems she experienced with 18 her Vehicle were manifested in Fault Codes P1682 and P0689, which were “identified by 19 GM as rooted specifically in terminal 51.” (Id.). Casey contends that she sufficiently 20 alleges that GM has known about the Fuse Block Defect since 2010, predating the sale of 21 any of the Class Vehicles. Casey contends that the service bulletins demonstrate that “GM 22 knew as early as 2010 that there was a terminal tension problem with all of the relays, 23 which includes terminal 51, and that a problem with terminal tension with terminal 51 24 would cause stalling and other safety hazards.” (Id. at 7-8). Casey contends that Rule 9(b)’s 25 26 1 GM requests that the Court take judicial notice of eight GM service bulletins. (ECF No. 16-2 at 2). 27 Judicial notice of the requested documents is unnecessary for this Order. The request for judicial notice is denied. See Asvesta v. Petroutsas, 580 F.3d 1000, 1010 n.12 (9th Cir. 2009) (denying request for judicial 28 1 heightened pleading standard does not apply because “fraud is not a required element of 2 Plaintiff’s claims.” (Id. at 17). Casey contends that even if Rule 9(b) applies, she “pleads 3 with particularity that, at the time of purchase, she reviewed the window sticker and relied 4 on its advertisements, including details of the existence and length of the express 5 warranties, when deciding whether to purchase or lease” the Vehicle. (Id. at 18). Casey 6 contends that GM “omitted the existence and nature of the defect from those sources at the 7 point of sale and thereafter.” (Id.). 8 Casey brings individual and class claims against Defendants for fraud by omission 9 and violation of the CLRA. “[N]ondisclosure is a claim for misrepresentation in a cause of 10 action for fraud, [and] it (as any other fraud claim) must be pleaded with particularity under 11 Rule 9(b).” Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009). The plaintiff 12 must provide “an account of the time, place, and specific content of the false 13 representations as well as the identities of the parties to the misrepresentations.” Swartz v. 14 KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (citation omitted). 15 The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or 16 practices undertaken by any person in a transaction intended to result or which results in 17 the sale . . . of goods or services to any consumer.” Cal. Civ. Code § 1770(a). Conduct 18 prohibited by the CLRA includes “[r]epresenting that goods or services have . . . 19 characteristics . . . that they do not,” “[r]epresenting that goods or services are of a particular 20 standard, quality, or grade . . . if they are of another,” and “[a]dvertsing goods or services 21 with intent not to sell them as advertised.” Id. § 1770(a)(5), (7), (9). “[F]raud is not a 22 necessary element of a claim under the CLRA . . . .” Kearns, 567 F.3d at 1125 (citing Vess 23 v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003)). Because “a defendant can 24 violate the . . . CLRA by acting with mere negligence,” Rule 9(b)’s heightened pleading 25 standard may not apply. Moore v. Mars Petcare U.S., Inc., 966 F.3d 1007, 1020 n.11 (9th 26 Cir. 2020). However, 27 [a] plaintiff may allege a unified course of fraudulent conduct and rely entirely on the course of conduct as the basis of [the CLRA] claim. In that event, the 28 1 claim is said to be “grounded in fraud” or to “sound in fraud,” and the pleading . . . as a whole must satisfy the particularity requirement of Rule 9(b). 2 3 Kearns, 567 F.3d at1125 (second and third alterations in original) (quoting Vess, 317 F.3d 4 at 1103-04). 5 In this case, Casey’s first claim for fraud by omission is a cause of action for fraud 6 and must be pleaded with particularity. See id. at 1127. The second claim for violation of 7 the CLRA is based on the same facts as the fraud claim. The second claims relies on the 8 alleged fraudulent course of conduct that GM intentionally concealed and failed to disclose 9 the Fuse Block Defect. Both of Casey’s claims are “‘grounded in fraud’ or [ ] ‘sound in 10 fraud,’ and the pleading . . . as a whole must satisfy the particularity requirement of Rule 11 9(b).”2 Id. at 1125 (second alteration in original) (quoting Vess, 317 F.3d at 1103-04). 12 Under California law, a fraud or CLRA claim may be based on an omission where 13 the “omission [is] contrary to a representation actually made by the defendant, or [is] an 14 omission of a fact the defendant was obliged to disclose.” Daugherty v. Am. Honda Motor 15 Co., 144 Cal. App. 4th 824, 835 (2006), as modified (Oct. 31, 2006). A manufacturer’s 16 duty to disclose “is limited to its warranty obligations absent either an affirmative 17 misrepresentation or a safety issue” and requires that the defendant was aware of the defect 18 at the time of sale. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th Cir. 2012) 19 (citations omitted)). “To state a [CLRA or fraud] claim for failing to disclose a defect, a 20 party must allege (1) the existence of a design defect; (2) the existence of an unreasonable 21 22 2 Where a plaintiff alleges some fraudulent and some non-fraudulent conduct, “Rule 9(b)’s heightened 23 pleading requirements [apply] only to ‘averments’ of fraud supporting a claim rather than to the claim as a whole.” Vess, 317 F.3d at 1104. The court should disregard or strip from the complaint averments of 24 fraud that are insufficiently pled and then examine the allegations that remain to determine whether they 25 state a claim. See id. In this case, Casey incorporates by reference all of the fraud allegations into the CLRA claim and alleges a unified course of fraudulent conduct, requiring the pleading as a whole to 26 satisfy Rule 9(b). See ECF No. 14 ¶ 93; Vess, 317 F.3d at 1104 (citing Melder v. Morris, 27 F.3d 1097, 1100 n.6 (5th Cir. 1994) (“Appellants maintain that their 1933 Securities Act claims were inappropriately 27 subjected to the Rule 9(b) heightened pleading standard. This argument is untenable in light of the complaint’s wholesale adoption of the allegations under the securities fraud claims for purposes of the 28 1 safety hazard; (3) a causal connection between the alleges defect and the alleged safety 2 hazard; and [(4)] that the manufacturer knew of the defect at the time the sale was made.” 3 Williams v. Yamaha Motor Co., 851 F.3d 1015, 1025 (9th Cir. 2017) (citation omitted). 4 “[T]o plead the circumstances of omission with specificity [under Rule 9(b)], plaintiff must 5 describe the content of the omission and where the omitted information should or could 6 have been revealed as well as . . . [the content of] advertisements, offers, or other 7 representations that plaintiff relied on to make her purchase and that failed to include the 8 allegedly omitted information.” Marolda v. Symantec Corp., 672 F. Supp. 2d 992, 1002 9 (N.D. Cal. 2009). 10 In addition, Article III standing requires that that the plaintiff suffered an injury that 11 is “fairly traceable to the challenged conduct.” Levine v. Vilsack, 587 F.3d 986, 991-92 (9th 12 Cir. 2009), as amended (Nov. 20, 2009). Casey must allege facts that support an inference 13 that her Vehicle experienced the Fuse Block Defect described in the Amended Complaint. 14 In the Amended Complaint, Casey alleges that the 2013-2017 Buick Enclave, 2013- 15 2017 Chevrolet Traverse, 2013-2016 Chevrolet Acadia, and 2017 Chevrolet Acadia 16 Limited share a common fuse block design and contain a “Fuse Block Defect” “wherein 17 the fuse block terminals fail to maintain sufficient tension, resulting in relays which are 18 mounted on fuse blocks being loose.” (ECF No. 14 ¶ 28). Casey alleges that “[t]he Fuse 19 Block Defect is the fact that there is poor connection/terminal retention.” (Id. ¶ 49). Casey 20 alleges that Fuse Block Defect affects the engine bay fuse block located on the passenger 21 side under the hood in Class Vehicles, causing safety issues including stalling, loss of 22 acceleration, loss of power steering, and/or loss of power breaking. 23 Casey alleges that GM has had knowledge of the Fuse Block Defect since 2010. 24 Casey alleges that the 2010 through 2019 service bulletins are “interrelat[ed]” and “point 25 back to the December 8, 2010 Service Bulletin,” in which GM first described the customer 26 complaints that are symptomatic of poor terminal tension. (Id. ¶ 47). Casey alleges that in 27 the service bulletins predating the sale of the Class Vehicles, GM “sought to attribute the 28 problem to various causes, such as after-market accessories[.]” (Id.). Casey alleges the 1 2019 service bulletin finally acknowledged the “underlying issue” of “poor terminal 2 tension in terminal 51 in X50A fuse block Underhood X3.” (Id. ¶¶ 43, 47). Casey alleges 3 that the fact that the 2019 service bulletin identifies the cause of symptoms dating back to 4 2010 as poor terminal tension in the engine bay fuse block demonstrates that “GM has 5 known about the Fuse [B]lock Defect for years, predating GM’s sale and distribution of 6 the Class Vehicles[.]” (Id. ¶ 48). 7 Casey alleges that on December 9, 2016, she purchased a used Class Vehicle—a 8 2014 Buick Enclave, which was sold new on October 13, 2013. Casey alleges that before 9 deciding to purchase the Vehicle, she “reviewed the window sticker and relied on its 10 advertisements, including details of the existence and length” of the vehicle’s factory 11 warranty. (Id. ¶ 3). Casey alleges that on approximately five occasions, the Vehicle lost 12 power while in motion, and the “stability and traction warning illuminated,” requiring 13 Casey to pull over and restart the Vehicle. (Id. ¶ 52). Casey alleges that she took the Vehicle 14 to Hoehn for repair twice, and Hoehn “identified Fault Code P1682, and found that the fuse 15 block ignition bus, also known as both Terminal 51 and the Engine Relay, was loose.” (Id. 16 ¶ 54). Casey alleges that Hoehn diagnosed the engine bay fuse block as “defective” and 17 replaced it. (Id. ¶ 55). 18 Casey alleges that GM has “failed to disclose at any time . . . that the Class vehicles 19 have the Fuse Block Defect,” has “failed to disclose at the time of purchase or lease that 20 the Class Vehicles were not in good working order, were defective, and were not safe,” 21 and has “made false statements that there is no defect relating to the Class Vehicles.” (Id. 22 ¶ 66). Casey alleges that as a result of “this misinformation,” Casey and the class members 23 have had to pay for repairs resulting from the Fuse Block Defect, have “not received the 24 value for which they bargained when they purchased or leased the Class Vehicles,” and 25 have experienced diminished value of the Class Vehicles. (Id. ¶ 68). 26 Casey’s allegations that Hoehn determined that her Vehicle’s loss of power while in 27 motion and illumination of the stability and traction warning light were caused by terminal 28 51 or the engine relay being loose are sufficient to support an inference that her Vehicle 1 experienced the Fuse Block Defect described in the Amended Complaint. The Court 2 concludes that facts as alleged by Casey support an inference that the alleged injury is 3 “fairly traceable to the challenged conduct” sufficient to confer Article III standing. Levine, 4 587 F.3d at 991-92. 5 Two of the GM service bulletins as alleged by Casey predate the original sale of the 6 Vehicle in 2013, and three of the service bulletins predate the sale of the Vehicle to Casey 7 in 2016. Casey alleges that the 2010 service bulletin applies to “2011 and prior GM 8 Passenger Cars and Trucks,” which includes vehicles that share the common fuse block 9 design and vehicles that do not. (ECF No. 14 ¶ 30). Casey alleges that the bulletin reports 10 customer complaints of symptoms that “may be caused” by various conditions including 11 “poor connection/terminal retention.” (Id. (emphasis added)). Casey alleges that the 12 February 2013 service bulletin applies to “2014 and prior GM cars and light duty trucks,” 13 which includes vehicles that share the common fuse block design and vehicles that do not. 14 (Id. ¶ 34). Casey alleges that the bulletin identifies diagnostic Fault Codes P1682 and 15 P0689, “which, among other things, can indicate poor connection/terminal retention 16 relating to the . . . Engine Relay, [ ] which is located in the Engine Bay Fuse Block.” (Id. ¶ 17 35 (emphasis added)). Casey alleges that the February 12, 2014, service bulletin applies 18 only to vehicles that share the common fuse block design, but “purports to identify the root 19 cause of Fault Code P1682” as the use of improperly wired after-market equipment, not 20 poor terminal tension. (Id. ¶ 38). 21 The contents of the service bulletins that predate the sale of Casey’s Vehicle show 22 that GM was aware that there were customer complaints of certain conditions in some GM 23 vehicles, of which one possible cause includes poor terminal tension. Casey alleges that 24 GM identified the “underlying issue” of “poor terminal tension in terminal 51 in X50A 25 fuse block Underhood X3” in the 2019 service bulletin, years after the sale of the Vehicle. 26 Id. ¶¶ 43, 47; see Tomek v. Apple Inc., 636 F. App’x 712, 713 (9th Cir. 2016) (“[T]he later 27 evidence tendered to show that Apple released a patch solving the issue does not show 28 knowledge of the defect at the time of sale.”). Casey fails to allege facts that support an 1 |/inference that GM was aware that there was a Fuse Block Defect affecting the Class 2 || Vehicles predating the sale of the Class Vehicles. The Court concludes that Casey fails to 3 || allege with particularity facts sufficient to infer that “the manufacturer knew of the defect 4 || at the time the sale was made.” Williams, 851 F.3d at 1025 (citation omitted). 5 Further, the offer, representation, or advertisement that Casey alleges she relied upon 6 || before deciding to purchase the Vehicle is the window sticker’s “advertisements, including 7 || details of the existence and length” of the Vehicle’s factory warranty. (ECF No. 14 4 3). 8 || Casey fails to allege that the window sticker did not include any required disclosure. Casey 9 not allege that she relied on any other advertisement, representation, or other offer 10 GM that failed to include any required disclosure. Casey fails to “describe [with 11 || specificity] the content of the omission and where the omitted information should or could 12 ||have been revealed as well as ... [the content of] advertisements, offers, or other 13 |/representations that plaintiff relied on to make her purchase and that failed to include the 14 allegedly omitted information.” Marolda, 672 F. Supp. 2d at 1002. The Court concludes 15 || that the Amended Complaint fails to meet the pleading requirements of Rule 9(b). GM’s 16 || Motion to Dismiss is granted. 17 || V. CONCLUSION 18 IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff's First Amended 19 ||Class Action Complaint (ECF No. 16) is granted. The First Amended Class Action 20 ||Complaint is dismissed without prejudice. No later than thirty (30) days from the date of 21 Order, Plaintiff may file any motion for leave to amend pursuant to Civil Local Rules 22 and 15.1(c). 23 || Dated: April 12, 2021 BME: ie Z. Ma 24 Hon. William Q. Hayes 25 United States District Court 26 27 28