Drake v. Haier US Appliance Solutions Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 CHARLES DRAKE, Case No. 23-cv-00939-AMO 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. RECONSIDERATION 10 HAIER US APPLIANCE SOLUTIONS Re: Dkt. No. 48 INC., — 11 — Defendant. — 12 — 13 Before the Court is Plaintiff Charles Drake’s Motion for Reconsideration of Certain 14 Aspects of the Court’s Order on Defendant’s Motion to Dismiss. The matter is fully briefed and 15 suitable for decision without oral argument. Civ. L.R. 7-6. Having read the parties’ papers and 16 carefully considered their arguments and the relevant legal authority, the Court hereby rules as 17 follows. 18 I. BACKGROUND 19 Drake brought this lawsuit on behalf of a putative class of consumers who purchased 20 Defendant’s gas stoves, ovens, and range products. Compl. (ECF 1) ¶ 5. Defendant Haier US 21 Appliance Solutions Inc. (“Haier”) responded by moving to dismiss the complaint. ECF 20. 22 Following briefing of the motion and a hearing, the Court granted in part and denied in part 23 Haier’s motion to dismiss. ECF 37. Relevant here, the Court dismissed with prejudice Drake’s 24 claims for violation of California’s Unfair Competition Law (Count 1), violation of California’s 25 False Advertising Law (Count 2), violation of California’s Consumer Legal Remedies Act (Count 26 3), and fraudulent omission (Count 7). ECF 37 at 15-16. — 27 — 1 Drake requested, and was granted, leave to file a motion for reconsideration on the Court’s 2 dismissal of his California statutory consumer protection claims. ECF 42, ECF 45, ECF 48. Haier 3 opposes reconsideration. ECF 49. 4 II. DISCUSSION 5 A motion for reconsideration may be made on three grounds: (1) a material difference in 6 fact or law exists from that which was presented to the court, which, in the exercise of reasonable 7 diligence, the moving party did not know at the time of the order for which reconsideration is 8 sought; (2) the emergence of new material facts or a change of law; or (3) a manifest failure by the 9 court to consider material facts or dispositive legal arguments. See Civ. L.R. 7-9(b). 10 Reconsideration is an extraordinary remedy that should be granted only in “highly unusual 11 circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000) (citation 12 omitted). 13 Drake here proceeds under the third ground for reconsideration, arguing that the Court 14 failed to consider dispositive legal arguments as well as Defendant’s admission that Proposition 65 15 does not bar Plaintiff’s fraud-based claims to the extent they are based on nitrogen dioxide. 16 However, Drake fails to identify any material facts or dispositive legal arguments that the Court 17 did not consider. 18 In its order on Defendant’s motion to dismiss, the Court held that Plaintiff’s fraud-based 19 claims were entirely derivative of a Proposition 65 violation and dismissed them with prejudice on 20 the basis that Plaintiff did not comply with Proposition 65’s pre-suit notice requirements. ECF 37 21 at 14-16. Courts in the Ninth Circuit bar relief where a plaintiff’s statutory claim inappropriately 22 attempts to “plead around” an unspoken Proposition 65 claim. Sciortino v. PepsiCo, Inc., 108 F. 23 Supp. 3d 780, 793 (N.D. Cal. 2015). Accordingly, a lack of pre-suit notice bars a claim if it is 24 “totally dependent on establishing a Proposition 65 violation.” Id. When plaintiffs “assert claims 25 independent of Proposition 65,” these claims are not barred by a lack of pre-suit notice. Id. at 792. 26 Drake contends that his fraud-based claims are based on the emission of nitrogen dioxide 27 from Haier’s products, a chemical that is not listed under Proposition 65. See Compl. (ECF 1) 1 chemicals subject to Proposition 65 are specifically listed in the applicable regulations. Cal. Code 2 Regs. Tit. 27, § 27001 (listing Proposition 65 chemicals). Nitrogen dioxide is not listed. Id. 3 Drake emphasizes that Haier conceded during the hearing on the motion to dismiss that 4 Proposition 65 would bar Drake’s claims only to the extent those claims are based on Proposition 5 65-listed chemicals, and not to the extent they are based solely on nitrogen dioxide. ECF 48-1 6 (Hearing Transcript) at 12:19-25 (“nitrogen dioxide is not a Prop 64 [sic] chemical, so if their 7 claim is based solely on nitrogen dioxide, the Prop 65 argument doesn’t apply to that.”). Drake 8 avers in this motion that the Court failed to consider this concession in reaching its conclusions. 9 But as noted in the Court’s original order, Drake asks the Court to ignore the portions of 10 his Complaint that reach beyond nitrogen oxides to describe emissions of chemicals that are 11 included on the Proposition 65 list. Plaintiff’s instant motion reinforces the Court’s earlier 12 determination because, rather than identifying legal authority the Court failed to consider, Plaintiff 13 argues that the Court should focus on his allegations regarding nitrogen dioxide and Haier’s 14 concessions regarding the same. His allegations combined several pollutants and alleged health 15 risks implicating Proposition 65 into a single purported “defect” (see Compl. ¶¶ 22, 32, 33, 41), 16 and he alleged Haier violated the UCL, FAL, and CLRA by failing to disclose this amalgamated 17 “defect” (id. ¶¶ 63, 68, 70, 71, 73, 76, 80, 86, 88, 90, 92). Drake cannot turn a Proposition 65 18 claim arising from a failure to warn about a grab bag of harmful listed chemicals into claims under 19 the UCL, FAL, and CLRA by arguing that he meant to narrowly refer to the harm posed by a 20 single chemical not listed in Proposition 65. This was the reasoning behind the Court’s earlier 21 determination. Plaintiff does not argue that the Court was incorrect for considering the various 22 Proposition 65-listed chemicals incorporated into his Complaint by reference. Drake presents no 23 legal authority that the Court overlooked or authority that suggests an alternative interpretation. 24 Drake thus fails to identify a manifest failure by the Court to consider material facts or dispositive 25 legal arguments. See Civ. L.R. 7-9(b). 26 Drake additionally argues that his fraud-based claims are based on the risk of respiratory 27 illnesses and asthma, taking them outside the territory of Proposition 65. See Compl. ¶¶ 17, 20. 1 “air pollutants” linked to “cancer” and “poorer birth outcomes[,]” including carbon monoxide, 2 benzene, hexane, toluene, and formaldehyde. See, e.g., Compl. (ECF 1) ff 1, 1.3, 17, 19, 19 3 n.1). None of Drake’s claims are limited to nitrogen dioxide, and they instead broadly allege that 4 || Haier failed to disclose all these Proposition 65 “health-harming pollutants” and risks. See Compl. 5 {| 65, 70, 71, 76, 86, 88, 90). Drake fails to identify a manifest failure by the Court to consider 6 || material facts or dispositive legal arguments. See Civ. L.R. 7-9(b). 7 In his motion for reconsideration, Drake posits that his statutory claims are based not just 8 on a failure to warn, but also on affirmative misrepresentations. See ECF 48 at 2. The Court 9 || earlier found that Drake (1) “fail[ed] to plead . . . a duty to disclose the fact of the emissions to 10 || him[,]’ (i) “ha[d] not identified any affirmative misrepresentation[,]” and (111) alleged no facts 11 showing that Haier “knew of the alleged defect underlying this lawsuit.” ECF 37 at 11-12. On 12 || this basis as well, Drake fails to identify any dispositive legal arguments that the Court failed to 13 consider in the first instance. Drake ultimately fails to carry his burden under Civil Local Rule 714 |} 9¢b). 15 || If. CONCLUSION a 16 As stated in the Court’s original order dismissing Drake’s fraud-based claims for failure to 3 17 || comply with Proposition-65’s pre-suit notice requirements, his “argument engages in 18 || inappropriate revisionism” regarding the contents of his own Complaint. ECF 37 at 15. Drake’s 19 || motion for reconsideration suffers from the same revisionism. For the reasons stated above, 20 || including his failure to identify material facts or dispositive legal arguments that the Court did not 21 earlier consider, the Court DENIES Plaintiff's motion for reconsideration. Plaintiff may file an 22 amended complaint within 30 days from the date of this order. 23 IT IS SO ORDERED. 24 || Dated: May 20, 2024 25 □□ □ □ 2 (nace ARACELI MARTINEZ-OLGUIN 27 United States District Judge — 28 —