CORRECTED MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS AND TO STRIKE
Francisco Garcia brought this action against M-F Athletic Company, Inc., dba Perform Better ("M-F Athletic"), Ledraplastic S.p.a ("Ledraplastic"),*fn1 and Ball Dynamics International, LLC ("Ball Dynamics") stating claims for strict products liability, negligence, and breach of express and implied warranties arising out of an accident involving an inflatable plastic exercise ball. Currently before the court are M-F Athletic and Ball Dynamics' joint motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion to strike pursuant to Rule 12(f), and Ledraplastic's motion to dismiss pursuant to Rule12(b)(6) or to strike pursuant to Rule 12(f).
I. Factual and Procedural Background
Plaintiff is a professional basketball player with the Sacramento Kings. (First Am. Compl. ("FAC") ¶ 1 (Docket No. 6).) Plaintiff alleges that while he was using an inflatable exercise ball in a foreseeable manner, the ball burst, causing him to fall to the ground with weights in both hands. (Id.) The fall caused several injuries, including a fractured right forearm. (Id.)
According to plaintiff, he was using a "Gymnic Plus Ball *Burst Resistant* 'Plus' Stability Ball-75 CM." (Id. ¶ 10.) He further alleges that this ball was actively marketed for use by athletes and that defendants represented and warranted that the ball had a six-hundred pound capacity and was "burst resistant." (Id. ¶¶ 10-11.) Plaintiff alleges defendants knew that, contrary to these representations, the exercise ball was "easily susceptible to bursting when confronted with weight capacities less . . . than 600 pounds" and that they "placed the exercise ball into the stream of commerce knowing that the exercise ball posed unsafe and dangerous consequences for foreseeable purchasers and users of the product, including Plaintiff, who used the product in a foreseeable manner." (Id. ¶ 12.)
Plaintiff's FAC states claims for strict products liability, negligence, and breach of express and implied warranties. (Docket No. 6.) He also seeks punitive damages. (FAC at 12:13.) Ledraplastic, Ball Dynamics, and M-F Athletic now move to dismiss plaintiff's claim for breach of express and implied warranties, as well as to either dismiss plaintiff's claim for punitive damages or strike that request from the FAC.
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 556-57).
A. Motions to Dismiss Breach of Warranty Claim "As a general rule, privity of contract is a required element of [a] ... breach of warranty cause of action." Fieldstone Co. v. Briggs Plumbing Prods., Inc., 54 Cal. App. 4th 357, 369 (4th Dist. 1997) (citing Burr v. Sherwin Williams Co., 42 Cal. 2d 682, 695 (1954) ("The general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale.")).*fn2 In other words, to state a claim for breach of either express or implied warranty, a plaintiff must "stand in 'vertical privity' with the defendant." Sanders v. City of Fresno, No. CIV F 05-0469, 2006 WL 1883394, at *19 (July 7, 2006).
The term "vertical privity" means that the plaintiff and defendant "occupy adjoining links in the distribution chain." Kennedy v. Baxter Healthcare Corp., 43 Cal. App. 4th 799, 810-11 (3d Dist. 1996). "For example, the distributor is normally in vertical privity with the manufacturer, and the ultimate retail buyer is normally in vertical privity with the dealer. But if the retail buyer seeks warranty recovery against a manufacturer with whom he has no direct contractual nexus, the manufacturer would seek insulation via the vertical privity defense." Osborne v. Subaru of Am., Inc., 198 Cal. App. 3d 646, 656 n.6 (3d Dist. 1988).
The closest that plaintiff comes to alleging privity of contract with defendants is claiming that the "exercise ball was marketed and/or sold to Plaintiff by Defendants M-F Athletic, Ledra and Ball Dynamics." (FAC ¶ 11.) It seems, however, implausible if not impossible that all three defendants sold plaintiff the ball. Although plaintiffs are allowed to plead in the alternative, on a motion to dismiss the plaintiff must allege facts that "plausibly suggest an entitlement to relief." Iqbal, 129 S.Ct. at 1951.
Here, plaintiff would presumably be aware of when and from whom he purchased the allegedly defective ball. In spite of this, he failed to include such facts in the FAC, and instead alleged only that one or more of the defendants may have sold the ball to him. These allegations suggest only the possibility that one defendant, as opposed to the two others, may be in privity with plaintiff. Such speculation does not plausibly suggest that plaintiff is entitled to relief from any defendant.
There are several exceptions to the privity requirement. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1023 (9th Cir. 2008). "The first arises when the plaintiff relies on written labels or advertisements of a manufacturer.
The other exceptions arise in special cases involving foodstuffs, pesticides, and pharmaceuticals, and where the end user is an employee of the purchaser." Id. (citing cases). A plaintiff may state a claim for breach of express or implied warranty without alleging privity, therefore, if he alleges facts suggesting that his case falls into one of the recognized exceptions to the general rule. See Margarita Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 580 (N.D. Cal. 1999).
Plaintiff has not argued that the allegations in the FAC render the any of the exceptions to the privity requirement applicable. Should he choose to reassert his breach of warranty claim relying on one of these privity exceptions, he is cautioned that he must allege specific facts showing that that privity exception is applicable. For example, if he wishes state a breach of warranty claim on the basis of ...