Key v. BMW of North America, LLC

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT; AFFORDING PLAINTIFF LEAVE TO AMEND; CONTINUING CASE MANAGEMENT CONFERENCE

          MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE

         Before the Court is defendant BMW of North America, LLC's ("BMW") "Motion to Dismiss Plaintiff Gretchen Key's First Amended Class Action Complaint Pursuant to Fed.R.Civ.P. 12(B)(6)," filed October 14, 2019. Plaintiff Gretchen Key ("Key") has filed opposition, to which BMW has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.^[1]

         BACKGROUND

         In the operative complaint, the First Amended Complaint ("FAC"), Key alleges the following, which, for purposes of the instant motion, the Court assumes true.

         BWM vehicles are "equipped with onboard diagnostic and data gathering equipment" that "gathers data from numerous data points and sensors" in the vehicles. (See FAC ¶ 8.) BMW "distributes to its dealerships diagnostic software and vehicle interface equipment" that are used by dealerships to "extract data" from vehicles, which data dealerships use "primarily" to "diagnos[e] the root cause of vehicle malfunctions and vehicle defects." (See FAC ¶ 9.) Data extracted by dealerships is "forwarded" to BMW, which data BMW "collects and archives." (See FAC ¶ 10.)

         Key owns a 2008 BMW 750LI. (See FAC ¶ 35.) In December 2017, BMW published a "safety recall," in which it "offered to fix a problem with the electric door latch which could cause the latch to unexpectedly open while driving." (See FAC ¶ 36.) In July 2018, Key took her vehicle to Weatherford BMW for the "repairs set forth in the recall" and Weatherford BMW performed such repairs (see FAC ¶ 37); in so doing, Weatherford BMW "extracted diagnostic data" from the vehicle (see FAC ¶ 2).

         After the recall work was performed, Key "experienced a series of additional problems with the vehicle" (see FAC ¶ 2), and, on four occasions, took her vehicle to Weatherford BMW "complaining" about such problems, which she identified on those occasions as, respectively, "problems with the airbag light and driver's side power window," "problems with the door brakes," "problems with the door locks," and "light switch and sensor faults and front and rear sides" (see FAC ¶¶ 38-41). On the first three such occasions, Key attributed the problems to Weatherford BMW's "recall" work (see FAC ¶¶ 38-40) and, on the fourth such occasion, to either the recall work or repairs performed on the third such occasion (see FAC ¶ 41). On the first, second, and fourth such occasions, Weatherford BMW "extracted" data from Key's vehicle. (See FAC ¶¶ 38, 39, 41.)

         Although Key "notified" Weatherford BMW that it had "damaged" her vehicle, Weatherford BMW "denied having caused any damage" and "refused to pay for the repairs." (See FAC ¶ 43.)^[2] Thereafter, in March 2019, Key, through counsel, contacted BWM to request it provide her "the data that BMW [was] in possession of relating to [Key's] vehicle," but BMW "refused, stating that 'a demand for production or a subpoena for production may only be issued in connection with pending litigation.'" (See FAC ¶ 44.)

         Key then took to the vehicle to an "independent repair facility," which was "unable to diagnose or repair the vehicle" because BMW did not "allow" it to "access all of the vehicle diagnostic data." (See FAC ¶ 45.) Key next took her vehicle to Concord BMW, which "identified a variety of electrical and other problems" and "performed repairs" for which it charged $1997.52, an amount Key paid. (See FAC ¶ 47.)

         As of August 30, 2019, the date on which Key filed the FAC, her vehicle "continues to experience problems that [she] attributes to the original recall repair." (See FAC ¶ 56.)

         Based on the above allegations, Key asserts against BMW two claims for relief, specifically, a claim under § 17200 of the California Business & Professions Code and a common law conversion claim. Both claims are based on BMW's alleged refusal in March 2019 to provide Key with the data Weatherford BMW had extracted from her vehicle. According to Key, such data "can reveal when the fault codes relating to the further damage were first detected," and that, "[i]f the fault codes were first detected while the vehicle was being serviced by Weatherford BMW, [Key] would be able to prove that Weatherford BMW caused the further damage while her BMW [v]ehicle was under warranty and [she] would be able to compel Weatherford BMW, if necessary by legal action, to pay for the expenses associated with repairing said further damage." (See FAC ¶ 50.)^[3]

         LEGAL STANDARD

         Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." See id. Nonetheless, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." See id. (internal quotation, citation, and alteration omitted).

         In analyzing a motion to dismiss, a district court must accept as true all material allegations in the complaint and construe them in the light most favorable to the nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). "To survive a motion to dismiss, a complaint must contain sufficient factual material, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555. Courts "are not ...