YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff Gnanh Nora Krouch ("Krouch") filed this putative class action against Wal-Mart Stores, Inc. ("Walmart") on May 2, 2012, alleging: (1) violation of the Consumer Legal Remedies Act, Civ. Code
Walmart now moves for summary judgment, seeking dismissal of each claim. (Dkt. No. 72 ("Motion").) Krouch opposes Walmart's motion. (Dkt. No. 76 ("Opposition").) Walmart filed its reply on May 20, 2014. (Dkt. No. 77 ("Reply").) On June 10, 2014, the Court held oral argument on the pending motions.
Having carefully considered the papers submitted and the pleadings in this action, the arguments of counsel, and for the reasons set forth below, the Court hereby
Walmart operates a chain of retail stores. Krouch's lawsuit arises from her claim that Walmart, via adhesive windshield stickers, "has been communicating to all oil change customers at its automobile service centers in California" that their next oil change is due within 3,000 miles or three months, "which is much more frequently than the majority of vehicles require, according to the manufacturers' recommendations." (Complaint ¶¶ 1, 10.)
The material facts proffered by Walmart are largely undisputed. Krouch, a California resident, owns a 2006 Toyota Camry that she purchased in 2009. (Declaration of David E. Bower in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ["Bower Opposition Decl." (Dkt. No. 76-2)], Ex. A [Deposition of Gnah Nora Krouch (December 17, 2012) ("Krouch Dep.")] at 96:12-20, 106:4-5.) When she purchased the Camry, she also received its owner's manual. (UMF No. 1.)
Krouch admitted seeing her car's oil change reminder light come on a "few times." (UMF No. 9). In 2009, the Oil Replacement Light started flickering. (Krouch Dep. at 96:12-20; 163:25-166:19; 201:23-204:10.) She referred to her owner's manual, and then eventually called her car dealership, to learn that the light meant she needed an oil change. (Id.) She also learned how to reset the Oil Replacement Light. (UMF No. 8.) After bringing her car into the Hilltop Toyota dealership on April 27, 2009, she was told to get an oil change because the car had been driven around 4,500 miles since the previous service. (UMF Nos. 11-12.) She declined to purchase an oil change from the dealership, and instead purchased one from Walmart on May 3, 2009. (UMF Nos. 13-14.) Krouch testified that she only purchased oil changes from Walmart. (UMF No. 28.) She continued to see the oil reminder light come on "even after she had oil changes at Wal-Mart." (Opposition at 5 (citing Krouch Dep. at 168:12-171:11).) She purchased those oil changes on the following dates, at which time her odometer reflected the referenced mileage readings:
Krouch changed her oil, on average, approximately every 5,700 miles, according to the available evidence. (UMF No. 29.)
On March 6, 2012, plaintiff's counsel sent a CLRA demand letter to Walmart, claiming Krouch was "deceived and misled about the need for an oil change" due to the oil change sticker Walmart placed in her vehicle. (UMF Nos. 31, 38.) Krouch then filed the instant action. After initiating the present lawsuit, Krouch continued to have her oil changed at Walmart. (UMF. No. 35.) Krouch testified that she still relied on the sticker even after filing suit. (UMF No. 37.)
Summary judgment is appropriate when no genuine dispute as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings, depositions, discovery responses, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party).
Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the opposing party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that the opposing party lacks evidence to support its case. Id. If the moving party meets its initial burden, the opposing party must then set out "specific facts" showing a genuine issue for trial in order to defeat the motion. Id. (quoting Anderson, 477 U.S. at 250). The opposing party's evidence must be more than "merely colorable" and must be "significantly probative." Anderson, 477 U.S. at 249-50. Further, that party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows a genuine issue of material fact exists for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000); Nelson v. Pima Cmty. College Dist., 83 F.3d 1075, 1081-1082 (9th Cir. 1996) ("mere allegation and speculation do not create a factual dispute"); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) ("conclusory allegations unsupported by factual data are insufficient to defeat [defendants'] summary judgment motion").
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). However, in determining whether to grant or deny summary judgment, it is not a court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted). Rather, a court is entitled to "rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment." See id.; Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found."). Ultimately, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).
Walmart seeks summary judgment on all four of Krouch's claims, arguing she cannot satisfy at least one element common to each—namely, damages or causation.
All four of plaintiff's causes of action require her to demonstrate she suffered harm—here, monetary damages. With respect to plaintiff's first cause of action, to assert a successful claim under the CLRA
Plaintiff's second cause of action, the UCL, also requires a claimant to "(1) establish a loss or deprivation of money or property sufficient to qualify as injuury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen off the claim." Bower v. AT & T Mobility, LLC, 196 Cal.App.4th 1545, 1554 (2011) (emphasis in original); see also Cal. Bus. & Prof. Code § 17204 (limiting actions for individual relief to those who "suffered injury in fact and . . . lost money or property as a result of the unfair compettition") (emphasis added).
With respect to plaintiff's third cause of action for violation of the FAL, relief is similarly only available to individuals who have "suffered injury in fact and [have] lost money or property as a result of a violation of this chapter." Cal. Bus. & Prof. Code § 17535 (emphasis added).
Finally, her fourth cause of action for unjust enrichment also requires a finding that the claimant suffered a loss. See San Francisco Bay Area Rapid Transit Dist. v. Spencer, 358 Fed. App'x 793, 795 (9th Cir. 2009) (finding "unjust enrichment claim fails for want of a loss") (citing Lectrodryer v. SeoulBank, 77 Cal.App.4th 723, 726 (2000) (noting the elements of unjust enrichment are "receipt of a benefit and unjust retention of the benefit at the expense of another").
Krouch's theory of injury is that she was harmed by paying Walmart for premature oil changes. She puts forth evidence, as reflected in the table above in Section I, demonstrating when and where she obtained each oil change during the relevant period, as well as her car's odometer readings at those times. The only evidence upon which Kroucch relies to demonstrate that those oil changes were premature—and therefore, presumably, resulted in an economic loss of some sort— is the recommended schedule set forth in her car's maintenancce guide. (Opposition at 2.)
The Toyota Camry's Scheduled Maintenance Guide specifies that the car's oil should be changed every 5,000 miles or six months. Krouch argues that she was harmed whenever she paid for an oil change after driving fewer than 5,000 miles since the prior service.
In addition, plaintiff's expert DrD . Jon Riddlle opines that plaintiff was injured as a result of having purchased, on average, about 3.4 oil changes per year
Walmart objects to the Riddle Report as inadmissible under Fed. R. Civ. P. 702 and Daubert v. Merrell Dow Pharm, Inc. ("Daubert"), 509 U.S. 579 (1993), on the grounds that the report is not supported by sufficient facts, fails to consider alternative explanations, and relies on unsound methodology. (Reply at 11-15.)
An expert may testify if, among other things, "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue" and "the testimony is based on sufficient facts or data." Fed. R. Evid. 702. Trial judges are charged with the responsibility of acting as "gatekeepers" to ensure that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. See Daubert, 509 U.S. at 589. The Supreme Court has established a two-part analysis for determining whether expert testimony is admissible: (1) "the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue," i.e., whether the proffered testimony is reliable; and (2) "the court must ensure that the proposed expert testimony is relevant and will serve to aid the trier of fact." United States v. Finley, 301 F.3d 1000, 1008 (9th Cir. 2002) (citing Daubert, 509 U.S. at 592-93). "Expeert testimonyy should not be admitted when it is speculative, it is not supported by sufficient facts, or the facts of the case contradict or otherwise render the opinion unreasonable." United States v. Rushing, 3888 F.3d 1153, 1156 (8th Cir. 2004).
Under this standard, the Court agrees that Dr. Riddle's testimony is not admissible. First, as noted in the preceding section, Dr. Riddle rests his opinions on his assumption that Krouch "made her decisions about when to have her Toyota's oil changed . . . based on the `every three months' prong of Wal-Mart's policies." (Riddle Report at 15.) He reaches this conclusion "[b]ased on my understanding of plaintiff's testimony." (Id.) More specifically, the report cites the following portion of her deposition transcript:
(Krouch Dep. at 161:18-162:3.) Dr. Riddle focuses on the portion of this testimony that says the "exact time frame for what's listed there" (Riddle Report at 13) to the exclusion of the next sentence which specifically references the mileage component of "3,000" miles.
Plaintiff testified unambiguously that she tries to stick "close to 3,000 [miles] or sometime it might tend to go over." (Krouch Dep. at 161:18-162:3; see also Dkt. No. 1 at 20 (Plaintiff's Venue Declaration) at ¶ 3 ("I purchased the oil change in reliance on the statements on the sticker that Wal-Mart placed on my windshield stating that another oil change was needed within 3000 miles. Had I known that the oil change was unnecessary, I would not have purchased it.").) In light of plaintiff's testimony, Dr. Riddle cannot base his opinion on an assumption for which the factual foundation is lacking in order to put forth an alternative theory of the case simply to avoid summary judgment. See Elsa Polo v. Innoventions Int'l LLC., No. 13-cv-830, 2014 WL 1778944, at *4-5 (C.D. Cal. May 1, 2014); see also Herrera v. United States, No. 09-cv-0756, 2010 WL 4236974, *7-8 (S.D. Cal. Oct. 21, 2010) (finding testimony insufficient to create a genuine issue of material fact where substantial undisputed evidence contradicted that testimony).
Next, Dr. Riddle interprets the Toyota Camry's maintenance guide at the section entitled "5,000 Miles—6 Months" to mean the greater of the two, that is, that a driver could optionally wait six months between oil changes no matter how many miles she had driven in the meantime. (Supplemental Declaration of Robert J. Herrington in Support of Reply in Further Support of Motion for Summary Judgment [Dkt. No. 72-2], Ex. P [Deposition of Jon M. Riddle, Ph.D.] at 96:18-25; Riddle Report at 16.) Walmart contends this is not a reasonable interpretation of the instruction. (Reply at 15.) The Court agrees. Dr. Riddle's intterpretation of the manual strains credulity. Further, nothing in Dr. Riddle's expertise provides him with a basis to suggest this alternative interpretation. The plain meaning of thhe owner's manual is fully within the comprehension of the jury. Dr. Riddle does not have any speccialized knowledge upon which he bases this opinion. The focus on the heading of the maintenance guide itself is insufficient to support the opinion. The guide clearly calls for ann oil change at the lesser of 5,000 miles or six months.
Because the Riddle Report is baased on unfounded and contradicted assumptions, the Court finds that Dr. Riddle's testimony would not be admissible at trial. Therefore, the Court will exclude the Riddle Report from the evidence it considers on summary judgment.
At the summary judgment stage, the Court will draw all reasonable inferences in plaintiff's favor and assume that obtaining an oil change earlier than the manufacturer recommends necessarily results in some unspecified economic lloss. Conversely, however, the Court finds for purposes of this analysis that obtaining an oil change when the car manufacturer recommended it does not result in an injury. Krouch has put forth no evidence to undercut this assumption.
Krouch argues that she was harmed whenever she obtaained an oil change after driving fewer than 5,000 miles since the prior change. The record presented evidences that during the period in question, Krouch changed her oil, on average, approximately every 5,700 miles. (UMF No. 29.) Compared with even the 5,000-mile manuufacturer recommendation, Krouch received fewer oil changes during the relevant time period than was recommended for her vehicle. Walmart argues this shows Krouch did not obtain excess oil changes and consequently suffered no injury. Averages alone, however, are not sufficiently persuasive where the Court must draw all reasonable inferences in Krouch's favor. After all, a single oil change could potentially result in an injury or skew the stated "average."
The owner's manual recommends the driver obtain an oil change "at an early opportunity depending on the driving and road conditions" as soon as the Oil Replacement Light begins flashing, which occurs at 4,500 miles after the prior oil change. (Motion at 3.) Using this 4,500-mile warning-light metric, Krouch only obtained three Walmart oil changes that would potentially qualify as causing her a loss. They occurred on June 12, 2010 (3,504-mile interval), July 2, 2011 (3,314-mile interval), and September 22, 2012 (4,487-mile interval). The Court analyzes each. First, with respect to the June 12, 2010 oil change, while plaintiff may argue that she suffered minimal economic injury, it could not have resulted from Walmart's conduct because, as addressed below, it was preceded by a Midas oil change. Next, the evidence reveals that the July 2, 2011 oil change occurred when plaintiff's oil was a half-quart low, and plaintiff has put forth no evidence suggesting obtaining an oil change under those circumstances caused her any economic injury. Indeed, it may have been preceded by her car's Oil Pressure Light turning on while she was driving, in which case the owner's manual recommends "pull[ing] off the road . . . [and] [c]alling a Toyota dealer or qualified repair shop for assistance." (Herrington Motion Decl., Ex. C at KROUCH0019.) Finally, the September 22, 2012 oil change took place 4,487 miles after the prior oil change—just 13 miles shy of the manufacturer's 4,500-mile recommendation. The Court is not willing to find that one 13-mile delta is sufficient to establish harm. Moreover, this oil change occurred after the filing of the lawsuit, significantly weakening any claim of causation, discussed more fully below.
Having considered plaintiff's theory of damages and found it largely lacking, the Court next addresses the causation element.
With respect to the causation element, the parties do not dispute its commonality to each of plaintiff's claims. See Hall v. Time Inc., 158 Cal.App.4th 847, 855 (2008) ("The phrase `as a result of' in its plain and ordinary sense means `caused by' and requires a showing of a causal connection or reliance on the alleged misrepresentation."); Brownfield v. Bayer Corp., No. 2:09-cv-00444, 2009 WL 1953035, at *3 (E.D. Cal. July 6, 2009) ("California requires a plaintiff suing under the CLRA . . . to plead and prove she relied on a material misrepresentation."); Wilens v. TD Waterhouse Grp., Inc., 120 Cal.App.4th 746, 754 (2003) ("Relief under the CLRA is specifically limited to those who suffer damage, making causation a necessary element of proof."); Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1363 (2010) (finding a UCL claim requires proof of causation and reliance); In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F.Supp.2d 1077, 1093 (S.D. Cal. 2010) (finding a claimant "alleging violations of the FAL must allege actual reliance"). For the elements of unjust enrichment to be satisfied, there must also be a sufficient causal nexus between an alleged injury and the conduct of the accused party such that the accused party was unjustly enriched. See Shum v. Intel Corp., 630 F.Supp.2d 1063, 1073 (N.D. Cal. 2009), aff'd, 633 F.3d 1067 (Fed. Cir. 2010) ("[E]ven when a party has received a benefit from another, it is required to make restitution only if the circumstances of its receipt or retention are such that, as between the two parties, the retention of the benefit is unjust. This requires wrongful conduct on the part of the party receiving the benefit.") (internal citation omitted). "[R]eliance is proved by showing that the defendant's misrepresentations or nondisclosure was `an immediate cause' of the plaintiff's injury-producing conduct." Mirkin v. Wasserman, 5 Cal.4th 1082, 1111 (1993).
Plaintiff argues that Walmart's stickers caused her injury by leading her to obtain unnecessary oil changes. Walmart challenges this assertion, arguing that even if plaintiff was harmed by obtaining a premature oil change, she did not do so in reliance on Walmart's reminder sticker. Walmart submits that the only evidence proffered in support of plaintiff's causation theory is her uncorroborated and self-serving claim that she relied only on the Walmart sticker in determining when to change her car's oil. Walmart asserts this testimony is belied by the undisputed facts in this case and need not be credited. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) ("[T]his court has refused to find a `genuine issue' where the only evidence presented is `uncorroborated and self-serving' testimony.").
The Court agrees. The undisputed evidence contradicts plaintiff's testimony, which can only be reasonably viewed as a self-serving attempt to avoid summary judgment. On three occasions, Krouch far exceeded Walmart's recommended 3,000 miles, waiting 8,985, 10,280, and 8,996 miles between oil changes. Indeed, all of the relevant oil changes, except for three, occurred after the Oil Replacement Light would likely have begun flashing. As discussed above, those three occurred on June 12, 2010, July 2, 2011, and September 22, 2012.
The June 12, 2010 oil change, according to evidence offered by plaintiff, was preceded by a Midas oil change. Therefore, even if it was premature, it would not have been precipitated by a Walmart reminder sticker.
The records for the July 2, 2011 oil change reveal that the car's oil was a half-quart low prior to the service, and therefore it might have been precipitated by the car's Oil Pressure Light illuminating. (Herrington Motion Decl., Ex. F at KROUCH0004 (Service Order).) Despite this evidence, plaintiff still maintains she obtained this oil change in reliance on Walmart's sticker. The claim rings hollow and this supports a finding that in this instance the testimony is merely self-serving.
Finally, on September 22, 2012, after having filed the instant lawsuit, plaintiff obtained an oil change at just under 4,500 miles since the previous oil change. On this and other occasions, even after accusing Walmart of providing misleading stickers in a letter and ultimately filing this lawsuit on that basis, Krouch continued to obtain oil changes from Walmart before reaching the 5,000-mile manufacturer service recommendation. This ongoing conduct is critical as it relates to the September 22, 2012 oil change in particular, but it also more generally undercuts Krouch's claim that Walmart's representations were material to her decisions to obtain oil changes prematurely. Cf. Leong v. Square Enix of Am. Holdings, Inc., No. CV 09-4484, 2010 WL 1641364, at *3-4, *11 (C.D. Cal. Apr. 20, 2010), aff'd, 462 F. App'x 688 (9th Cir. 2011) (holding plaintiff's continued payment of monthly subscription fees pursuant to a user agreement suggested she did not consider a particular term of the agreement material and dismissing CLRA, UCL, and FAL claims). The statement respecting this last oil change, again, is self-serving and does not create a genuine issue of material fact.
Accordingly, the Court finds that no reasonable fact finder could conclude that Krouch suffered an injury in fact (e.g., a loss of money or property) as a result of Walmart's conduct. Summary judgment on these grounds is therefore appropriate.
Because plaintiff has failed to put forth evidence that could lead a reasonable trier of fact to find in her favor, the Court hereby
