United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
FIRST AMENDED COMPLAINT; AFFORDING PLAINTIFF LEAVE TO AMEND;
CONTINUING CASE MANAGEMENT CONFERENCE
M. CHESNEY UNITED STATES DISTRICT JUDGE
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.
operative complaint, the First Amended Complaint
("FAC"), Key alleges the following, which, for
purposes of the instant motion, the Court assumes true.
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.)
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).
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.)
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 ¶
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 ¶
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.)
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.)
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 ¶
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).
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 ...