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David Baba and Ray Ritz v. Hewlett-Packard Company

January 28, 2011

DAVID BABA AND RAY RITZ,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
HEWLETT-PACKARD COMPANY,
DEFENDANT.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

I. INTRODUCTION

Plaintiffs David Baba and Ray Ritz bring this suit against defendant Hewlett-Packard (HP) seeking to represent a class of consumers who purchased allegedly defective notebook computers 22 sold by the company. They contend that HP's TX 2000 and TX 2500 series computers suffer from a 23 defect that causes the cursor to move to the lower right portion of the screen and that HP violated 24 unfair competition and consumer protection laws by making material misrepresentations or 25 omissions about the problem. HP filed a motion to dismiss plaintiffs' second amended complaint*fn1

(SAC) and on December 2, 2010, the Court heard oral argument. For the reasons stated below, the 2 motion to dismiss is granted in part and denied in part.

According to the SAC, Baba purchased a TX 2000 series computer in Arizona on November 29, 2008. The computer at issue is a "tablet" or "touchscreen" that allows the user to operate it with 6 a stylus or fingertip instead of a keyboard or mouse. After approximately six months, Baba's wife 7 began experiencing problems with the cursor moving to the lower right portion of the screen. Baba 8 contacted HP about the problem "on multiple occasions," but none of the procedures suggested by Best Buy for repair. The Geek Squad stated it was aware of the "jumping cursor" problem, but was unable to fix it. Eventually, Baba sent the computer to HP in Fremont, California for warranty service. HP returned Baba's computer, informing him that it had replaced his screen. Although HP 13 did not indicate that the computer's processing speed had been changed, within two weeks Baba 14 noticed that it had been reduced to 50% of its capacity. After resetting the processor to its normal 15 speed, the jumping cursor returned. Baba "immediately contacted" HP and requested a proper 16 repair, but the company "did not offer to satisfactorily repair the computer."

Approximately three to five months later, he began "sporadically experiencing" the jumping cursor 19 defect. Initially, he attempted to fix the problem by adjusting the computer's settings. Around May 20 2009, Ritz first contacted HP through its online customer support. It directed Ritz to make various 21 changes to settings and software, none of which eliminated the problem. HP offered to sell Ritz 22 telephone support for $49, suggesting that its service representatives had received more advanced 23 training than the online support staff. drawing the cursor to the lower right corner of the computer's screen. They further contend that HP 26 knew the computers experienced a "significant and disabling problem with a jumping cursor" at the 27 time Baba made his purchase. In support of this allegation, their SAC includes sixty-six Internet 28 postings written between May 17, 2008 and May 31, 2010. Twenty-six of the cited complaints

II. BACKGROUND

HP eliminated the problem. HP then directed Baba to take his computer to the "Geek Squad" at United States District Court

For the Northern District of California Ritz purchased a HP TX 2000 series computer in Massachusetts on March 25, 2008. Plaintiffs allege that a defect, namely the location of the cooling fan, is responsible for appeared prior to Baba's purchase in November 2008, but none were made prior to Ritz's 2 transaction. Of these twenty-six complaints, only three were posted at a forum hosted on HP's own 3 website. The remaining complaints were available on third-party Internet sites. Nine messages 4 posted on the non-HP sites indicate that the author had contacted HP about the jumping cursor 5 problem at a time prior to Baba's purchase. Based on these contentions, plaintiffs raise four claims:

Legal Remedies Act (CLRA); (3) breach of express warranty; and (4) breach of the implied 8 warranty of merchantability.

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must present "a short and plain statement of the claim" demonstrating that the plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2).

If the complaint does not meet this standard, the defendant may move to dismiss for failure to state a 13 claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Dismissal is appropriate if the 14 claimant either does not raise a cognizable legal theory or fails to allege sufficient facts to support a 15 cognizable claim. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Thus, 16 while a legally sufficient complaint does not require "detailed factual allegations," it must contain 17 more than "unadorned" assertions of harm or bare legal conclusions without factual support. 544, 570 (2007)). In evaluating a Rule 12(b)(6) motion to dismiss, all material allegations in the 20 complaint are accepted as true and construed in the light most favorable to the non-moving party.

Furthermore, Federal Rule of Civil Procedure 9(b) requires that "[in] allegations of fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." To 24 satisfy the rule, a plaintiff must plead the "who, what, where, when, and how" of the claimed 25 misconduct. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). Defendants must be provided 26 notice of "particular misconduct," such that they may "defend against the charge" beyond a general 27 denial of wrongdoing. Vess v. Ciba-Geigy Corp. ...


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