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Azoulai v. BMW of North America LLC

United States District Court, N.D. California, San Jose Division

April 13, 2017

AVI AZOULAI, ET AL., Plaintiffs,


          BETH LABSON FREEMAN United States District Judge

         Humans 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.

         Presently 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 TO AMEND.

         I. BACKGROUND

         Plaintiffs, 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.

         Beginning in 2002, BMW began developing, distributing, marketing, advertising, and selling certain models of vehicles with an SCA system.[1] 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.

         Plaintiffs, 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.

         Plaintiff 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.


         A. Rule 12(b)(1) and Standing

         Article 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).

         In 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).

         B. Rule 12(b)(6)

         Under 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 (2007).


         Before 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.

         While 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. 2006).

         BMW 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).

         As to 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. ...

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