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Renee Tietsworth, Suzanne Rebro, Sondra Simpson, and v. Sears

March 28, 2013

RENEE TIETSWORTH, SUZANNE REBRO, SONDRA SIMPSON, AND
JOHN CAREY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
SEARS, ROEBUCK AND CO., AND WHIRLPOOL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Jeremy Fogel United States District Judge

**E-Filed 3/28/2013**

United States District Court

ORDER*fn1 DENYING PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION [re: dkt. entry 179]

Plaintiffs Suzanne Rebro, Sondra Simpson, and John Carey ("Plaintiffs")*fn2 have filed a 22 renewed motion for class certification pursuant to Fed. R. Civ. P. 23. Defendants Sears, Roebuck 23 and Co. ("Sears") and Whirlpool Corporation ("Whirlpool") (collectively, "Defendants") oppose the 24 motion. The Court concludes that the motion is appropriate for disposition without oral argument 25 pursuant to Civil Local Rule 7-1(b). For the reasons discussed below, the motion will be denied. 26

not be set forth in full here. In brief, Plaintiffs allege that certain top-loading Kenmore Elite Oasis 4 automatic washing machines ("Machines") were manufactured with a defective electronic control 5 board ("ECB"). According to Plaintiffs, the defective ECB results in three different types of 6 malfunction: (1) a "F1" error; (2) a "F51" error; and (3) a "sudden instability event" that can result 7 in an explosion when certain types of fabric are in the wash load. The operative third amended 8 complaint ("TAC") asserts claims against Whirlpool and Sears under California unfair competition 9 and consumer protection laws, California common law, and the federal Magnuson-Moss Warranty 10

On May 4, 2012, the Court denied Plaintiffs' motion for class certification with respect to all of these claims. Tietsworth v. Sears, Roebuck and Co., No. 5:09-cv-00288-JF (HRL), 2012 WL 13

I. BACKGROUND

The facts giving rise to this action are well-known to the parties and to the Court and need Act ("MMWA"), 15 U.S.C. § 2301 et seq. 1595112 (N.D. Cal. May 4, 2012) ("Prior Order"). Although it determined that the numerosity, 14 commonality, typicality, and adequacy requirements of Fed. R. Civ. P. 23(a) were satisfied, id. at 15 *15-17, the Court concluded that the proposed classes were overbroad and unmanageable as 16 defined, id. at *14; Plaintiffs' state law claims based upon concealment of the ECB defect were not 17 appropriate for certification absent evidence that the ECB defect caused an unreasonable safety 18 hazard, id. at *15; and individual questions predominated with respect to Plaintiffs' state law 19 warranty claims, id. at *17. As to the MMWA claim, the Court observed that: 20 clarification, the Court conceivably could certify a properly defined class with respect to the MMWA claim. However, because the proposed classes are overbroad and unmanageable as currently defined, the present motion for class certification will be denied in its entirety.

. . . Plaintiffs' counsel clarified at the hearing that the claim is based solely upon the federal statute and does not depend upon the laws of individual states. In light of that

Plaintiffs could define an appropriate class with respect to their MMWA claim, this determination is 26 without prejudice, but only to that extent." Id. at *18. Plaintiffs now renew their motion for class

ORDER DENYING PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION

Id. at *17. The Court ordered that, "Because there appears to be a reasonable possibility that certification with respect to their MMWA claim, which is asserted only against Sears.*fn3 2 as follows: 4

TAC ¶ 42, ECF No. 93; User's Guide at p. 3, ECF No. 127-23. Plaintiffs allege that this warranty is 8 a written warranty covered by the MMWA; Sears's systematic refusal to repair and/or replace the 9

The MMWA claim is based upon a one-year limited warranty issued by Sears, which reads

ONE YEAR LIMITED WARRANTY

When installed, operated and maintained according to all instructions supplied with the product, if this appliance fails due to a defect in material or workmanship within one year from the date of purchase, call 1-800-4-MY-HOME to arrange for free repair.

ECB violates 15 U.S.C. § 2302(a)(6), requiring a written warranty to include "[e]xceptions and 10 exclusions from the terms of the warranty"; Sears's failure to include in the warranty a brief, general

description of the legal remedies available to consumers violates 15 U.S.C. § 2302(a)(9); and Sears's failure to repair or replace the ECBs that failed within the first year of purchase constitutes a 13 breach of warranty that subjects Sears to liability for damages, equitable relief, attorneys' fees, and 14 costs pursuant to 15 U.S.C. § 2310(d). TAC ¶¶ 148, 150, 151, 165, 169, ECF No. 93. 15

Although these allegations assert both form-and-content claims (based upon alleged 16 violations of MMWA provisions prescribing the form and content of written warranties) and breach-17 of-warranty claims (based upon alleged failure to comply with written warranties), Plaintiffs' 18 proposed class definition is directed only to the breach-of-warranty claims, that is, claims that 19

ORDER DENYING PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION

Plaintiffs reported F1 and/or F51 error codes to Sears within the one-year warranty period but were 20 denied repair of the problem and had to pay out-of-pocket or suffer continued F1 and F51 error 21 codes. Plaintiffs seek certification of a nationwide class, defined as follows: 2

December 1, 2005*fn4 included within the models below; (2) experienced an F1and/or F51 error code and contacted Sears*fn5 within the warranty period; and (3) either (a) paid for a replacement electronic control board, and/or (b) are still experiencing F1 or F51 error codes.

110.27032600, 110.27032601, 110.27032602, 110.27032603, 110.27042600,

110.27042601, 110.27042602, 110.27042603, 110.27052600, 110.27052601, 110.27052602, 110.27062600, ...


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