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Case 2:17-cv-00035-VAP-KS Document 28 Filed 03/03/17 Page 1 of 3 Page ID #:237

1 MORGAN, LEWIS & BOCKIUS LLP


David L. Schrader, Bar No. 149638
2 david.schrader@morganlewis.com
Esther K. Ro, Bar No. 252203
3 esther.ro@morganlewis.com
Jahmy S. Graham, Bar No. 300880
4 jahmy.graham@morganlewis.com
300 South Grand Avenue
5 Twenty-Second Floor
Los Angeles, CA 90071-3132
6 Tel: +1.213.612.2500
Fax: +1.213.612.2501
7
Attorneys for Defendant
8 Toyota Motor Sales, U.S.A., Inc.
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
13 PAUL STOCKINGER, ELIZABETH Case No. 2:17-cv-00035-VAP (KSx)
STOCKINGER, GAILYN KENNEDY,
14 BASUDEB DEY, BRENDA FLINN, NOTICE OF MOTION AND
and ELIEZER CASPER on behalf of MOTION TO DISMISS
15 themselves and all others similarly PLAINTIFFS COMPLAINT
situated,
16 [Memorandum of Points and
Plaintiffs, Authorities; Request for Judicial
17 Notice; Declarations of Barry M. Hare
vs. and David L. Schrader filed
18 concurrently herewith]
TOYOTA MOTOR SALES, U.S.A.,
19 INC., a California corporation, [[Proposed] Order lodged concurrently
herewith]
20 Defendant.
Date: April 3, 2017
21 Time: 2:00 p.m.
22 Judge: Hon. Virginia A. Phillips
Ctrm.: 8A, 8th Floor
23
24 Complaint filed: January 3, 2017
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES NOTICE OF MOTION AND MOTION TO
DB1/ 90809060.1 DISMISS PLAINTIFFS COMPLAINT
Case 2:17-cv-00035-VAP-KS Document 28 Filed 03/03/17 Page 2 of 3 Page ID #:238

1 NOTICE OF MOTION AND MOTION TO DISMISS


2 TO THE COURT AND TO ALL PARTIES AND COUNSEL OF
3 RECORD: PLEASE TAKE NOTICE THAT on April 3, 2017 at 2:00 p.m., or as
4 soon thereafter as this matter may be heard in Courtroom 8A of the Central District
5 of California, located at 350 West 1st Street, Los Angeles, California 90012, the
6 Honorable Virginia A. Phillips presiding, Defendant Toyota Motor Sales, U.S.A.,
7 Inc. (Toyota) will and hereby does move the Court for an order dismissing
8 Plaintiffs Paul Stockinger, Elizabeth Stockinger, Gailyn Kennedy, Basudeb Dey,
9 Brenda Flinn, and Eliezer Casper (collectively, Plaintiffs) Class Action
10 Complaint (Complaint) pursuant to Federal Rule of Civil Procedure 12(b)(6) and
11 9(b).
12 Toyota moves to dismiss the entirety of Plaintiffs Complaint for the
13 following reasons:
14 First, Plaintiffs fail to plausibly allege a defect with their HVAC systems that
15 is causing the purported odors experienced.
16 Second, Plaintiffs fraud-based claims fail because Plaintiffs do not identify a
17 material misrepresentation made by Toyota about their vehicles or HVAC systems.
18 Similarly, Plaintiffs fail to identify an omission by Toyota and that Toyota had a
19 duty to disclose this fact. Moreover, it is undisputed that Toyota discloses the
20 possibility of HVAC odor in its owners manuals.
21 Third, Plaintiffs fail to plead a breach of warranty claim. Plaintiffs breach of
22 express warranty claim fails because the written warranty is limited to defects in
23 materials and/or workmanship and does not cover design defects. Plaintiffs also
24 fail to plead a breach of the implied warranty of merchantability because their
25 vehicles are fit for their ordinary purpose of providing transportation. The failure to
26 plead an underlying breach of warranty claim requires dismissal of Plaintiffs
27 claims under the Song-Beverly Warranty Act and the Magnuson-Moss Warranty
28 Act.
MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW NOTICE OF MOTION AND MOTION TO
LOS ANGELES 1 DISMISS PLAINTIFFS COMPLAINT
DB1/ 90809060.1
Case 2:17-cv-00035-VAP-KS Document 28 Filed 03/03/17 Page 3 of 3 Page ID #:239

1 Fourth, Plaintiffs have not otherwise alleged a claim under state consumer
2 protections laws for any unlawful or unfair conduct.
3 Fifth, Plaintiffs equitable claims fail because Plaintiffs have alleged that
4 there is an inadequate remedy at law. Further, unjust enrichment is not an
5 independent claim under prevailing California law.
6 Sixth, Plaintiffs do not have standing to pursue claims regarding vehicles they
7 did not purchase.
8 This motion is made following the conference of counsel pursuant to
9 L.R. 7-3 that took place on February 24, 2017. This motion is based on this Notice
10 of Motion and Motion to Dismiss, the accompanying Memorandum of Points and
11 Authorities, Toyotas Request for Judicial Notice, the Declaration of Barry M.
12 Hare, the Declaration of David L. Schrader, and all other matters that may be
13 judicially noticed, as well as the files and records in this case, and any oral or
14 documentary evidence that may be adduced at the hearing on this matter.
15
16 Dated: March 3, 2017 MORGAN, LEWIS & BOCKIUS LLP
David L. Schrader
17
Esther K. Ro
18 Jahmy S. Graham
19
20 By /s/ David L. Schrader
21 David L. Schrader
Attorneys for Defendant
22 Toyota Motor Sales, U.S.A., Inc.
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW NOTICE OF MOTION AND MOTION TO
LOS ANGELES 2 DISMISS PLAINTIFFS COMPLAINT
DB1/ 90809060.1