United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED
COMPLAINT WITH PREJUDICE [RE: ECF 46]
LABSON FREEMAN United States District Judge
have been slamming their fingers in doors since doors were
invented. The doors on Defendant BMW of North America, LLC
(“BMW”)'s vehicles are no exception, and
Plaintiffs Avi Azoulai, Kamil Cirak, and Reem Haidary
(collectively, “Plaintiffs”) and/or their family
members suffered injuries we are all too familiar with.
Rather than seeking to recover for their injuries, Plaintiffs
bring this suit grounded in consumer fraud-they allege that
the BMW soft close automatic feature (“SCA”) is
defective because it does not have sensors to detect fingers
in the car doors before activating and that BMW unlawfully
failed to disclose the alleged defect.
before the Court is BMW's motion to dismiss
Plaintiffs' second amended complaint (“SAC”)
for lack of standing and failure to state a claim. See
generally Mem. P. & A. ISO Mot.
(“Mot.”), ECF 46-1. Although the Court
acknowledges the severity of the alleged injuries, the Court
agrees that Plaintiffs cannot establish standing or state a
viable consumer protection or warranty claim and thus shuts
the door on this case. For the reasons discussed herein, the
Court GRANTS Defendant's motion to dismiss WITHOUT LEAVE
who own or lease a BMW vehicle equipped with the SCA, bring
this action on behalf of themselves and all others similarly
situated, asserting six causes of action: (1) breach of
express warranty; (2) breach of implied warranty; (3) breach
of warranty, under the Song-Beverly Consumer Warranty Act
(“Song-Beverly”), Cal. Civ. Code § 1790,
et seq.; (4) breach of warranty, under the
Magnuson-Moss Warranty Act (“Magnuson-Moss”), 15
U.S.C. § 2301, et seq.; (5) violation of the
California Consumer Legal Remedies Act (“CLRA”),
Cal. Civ. Code § 1750, et seq.; and (6)
violation of the California Unfair Competition Act
(“UCL”), Cal. Bus. & Prof. Code § 17200,
et seq. See generally SAC, ECF 41.
in 2002, BMW began developing, distributing, marketing,
advertising, and selling certain models of vehicles with an
SCA system. Id. ¶ 34. The SCA is an
optional, add-on feature, costing approximately $500 to $1,
000, that auto-activates and pulls the door of the vehicle to
the frame of the automobile and firmly closes it when the
door is within 6mm of the closed position. Id.
¶¶ 3, 74. Plaintiffs allege that the actual gap
between various points of the door and the doorframe may be
larger than 6mm when the SCA auto-activates. Id.
¶ 39. According to Plaintiffs, when the SCA
self-activates, anything in the way of the door is
“squeezed and crushed” between the door and the
doorframe. Id. ¶ 41.
who purchased the SCA feature for their vehicle, allege that
they and/or their family members suffered physical injuries
“because the SCA crushed their fingers while drawing
the doors of their Vehicles to the closed position.”
Id. ¶¶ 24, 28, 31. Plaintiff Azoulai, who
leased his BMW 750Li from an authorized BMW dealer, suffered
a “right finger crush injury” on or about June
16, 2015, when “the door of [his vehicle] was lightly
pushed toward the closing position, ” and the SCA
system activated to pull the door completely shut on his
finger. Id. ¶¶ 23- 24. Plaintiff Cirak,
who purchased his vehicle from an authorized BMW dealer in
Houston, Texas, suffered an injury to his right thumb after
he exited the vehicle and the door “slowly recoiled
back . . . toward the closing position, ” and the SCA
activated. Id. ¶¶ 25, 28. Finally,
Plaintiff Haidary, who purchased her vehicle from an
authorized BMW dealer in Riverside, California, alleges that
her husband was injured when the SCA self-activated and
pulled the driver's side door closed on his right thumb.
Id. ¶¶ 29, 31. All three Plaintiffs allege
that they would not have suffered those injuries but for the
SCA drawing the door to the fully closed position and that
BMW was aware of the alleged defect “at all relevant
times.” Id. ¶¶ 24, 28, 31, ¶
76. Plaintiffs Cirak and Haidary allege that they would not
have purchased the vehicle had BMW disclosed the alleged
defect. Id. ¶¶ 27, 30.
Azoulai originally filed this suit in state court on December
18, 2015, and BMW removed the action to this Court. Notice of
Removal, ECF 1. On March 21, 2016, Plaintiff Azoulai filed a
first amended complaint. See First Am. Compl.
(“FAC”), ECF 12. BMW moved to dismiss the FAC for
lack of standing, among other purported deficiencies in each
of Plaintiff's claims. ECF 13. After hearing argument on
the motion to dismiss, the Court granted BMW's motion to
dismiss for lack of standing with leave to amend.
See ECF 32. The Court also pointed out other
deficiencies that might preclude the action from moving
forward. Id. at 2. The SAC, filed on September 22,
2016, added two additional plaintiffs-Kamil Cirak and Reem
Haidary. See generally SAC. BMW now moves to dismiss
the SAC for lack of standing and failure to state a claim.
See generally Mot.
Rule 12(b)(1) and Standing
III of the U.S. Constitution's “case and
controversy” requirement obligates federal courts to
determine, as an initial matter, whether plaintiffs have
standing to bring suit. Lance v. Coffman, 549 U.S.
437, 439 (2007). At the pleading stage, to satisfy the
standing requirement plaintiffs must allege: (1) that they
have suffered an “injury in fact that is (a) concrete
and particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) that the injury is fairly
traceable to the defendant's challenged conduct; and (3)
that the injury will likely be redressed by a favorable
decision. See, e.g., Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180-81 (2000); Lujan v. Defs. of Wildlife, 504 U.S.
555, 561-62 (1992). At least one named plaintiff must have
suffered an injury in fact. See Lierboe v. State Farm
Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003)
(“[I]f none of the named plaintiffs purporting to
represent a class establishes the requisite of a case or
controversy with the defendants, none may seek relief on
behalf of himself or any other member of the class.”)
(citation omitted). The party seeking to invoke federal court
jurisdiction has the burden of establishing standing. See
Lujan, 504 U.S. at 561. This threshold requirement
applies equally to named plaintiffs in a putative class
action. See Lewis v. Casey, 518 U.S. 343, 357
(1996). The Ninth Circuit has emphasized that “[t]he
jurisdictional question of standing precedes, and does not
require, analysis of the merits.” Maya v. Centex
Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (citation and
internal quotation marks omitted).
addition, under California's UCL, a private person has
standing only if he “has suffered injury in fact and
has lost money or property as a result of the unfair
competition.” Cal. Bus. & Prof. Code § 17204;
see also Kwikset Corp. v. Superior Court, 51 Cal.4th
310, 322 (2011). Similarly, to bring a case under the CRLA, a
plaintiff “must not only be exposed to an unlawful
practice but also have suffered some kind of damage.”
Bower v. AT & T Mobility, LLC, 196
Cal.App.4th 1545, 1556 (2011) (citations and internal
quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6), a complaint may be
dismissed for failure to state a claim upon which relief may
be granted. Dismissal may be based on “the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). For purposes of evaluating a motion
to dismiss, a court “must presume all factual
allegations of the complaint to be true and draw all
reasonable inferences in favor of the nonmoving party.”
Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th
Cir. 1987). A complaint must plead “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. “Courts
must consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
JUDICIAL NOTICE AND EVIDENTIARY OBJECTIONS
addressing BMW's motion, the Court considers BMW's
request for judicial notice and Plaintiffs' objections to
portions of the declaration of Manual Sattig, which was filed
in support of BMW's motion to dismiss. See SAC
23-25; Sattig Decl. ISO Mot. (“Sattig Decl.”),
ECF 46-5; Opp'n 24-25, ECF 49.
the scope of review on a motion to dismiss is generally
limited to the contents of the complaint, under Fed.R.Evid.
201(b), courts may take judicial notice of facts that are
“not subject to reasonable dispute.” Courts have
previously taken judicial notice of documents on which
complaints necessarily rely and documents incorporated into
the complaint by reference, Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
Tellabs, 551 U.S. at 322, and court filings and
other matters of public record, Reyn's Pasta Bella,
LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.
requests that the Court take judicial notice of the relevant
pages of (1) Azoulai's 2014 BMW 750Li owner's manual,
Ex. 1 to Mot. (“Ex. 1”), ECF 46-2, (2)
Cirak's 2014 BMW X6M owner's manual, Ex. 2 to Mot.
(“Ex. 2”), ECF 46-3, and (3) Haidary's 2013
BMW X5 owner's manual, Ex. 3 to Mot. (“Ex.
3”), ECF 46-4; all of which BMW contends are available
online. Mot. 24. BMW also asks the Court to take judicial
notice of the declaration of BMW employee Manuel Sattig filed
by BMW in Barakezyan v. BMW of N. Am., LLC, No.
16-cv-173, ECF 16-4 (C.D. Cal. filed Feb. 29, 2016).
the set of owner's manuals, BMW contends that the
documents are integral to the analysis of Plaintiffs'
claims, are explicitly referenced in the SAC, and cannot be
subject to reasonable dispute. Mot. 24. BMW thus argues that
the Court may take judicial notice of these documents.
Id. (citing Kirsopp v. Yamaha, No.
14-cv-496, 2015 WL 11197829, at *3 (C.D. Cal. Jan. 7, 2015)
(taking judicial notice of the existence and contents of one
of defendant's owner's manuals)). BMW submits the
declaration of Mr. Sattig, a BMW employee, which was
originally filed in Barakezyan. Mot. 25. ...