Rojas v. Bosch Solar Energy Corp.

• Decision Date: 29 May 2019
• Docket Number: Case No. 18-cv-05841-BLF
• Citation: 386 F.Supp.3d 1116
• Court: U.S. District Court — Northern District of California
• Parties: Steve R. ROJAS and Andrea N. Rojas, on behalf of themselves and all others similarly situated, Plaintiffs, v. BOSCH SOLAR ENERGY CORPORATION, Defendant.

386 F.Supp.3d 1116

Steve R. ROJAS and Andrea N. Rojas, on behalf of themselves and all others similarly situated, Plaintiffs,

v.BOSCH SOLAR ENERGY CORPORATION, Defendant.

Case No. 18-cv-05841-BLF

United States District Court, N.D. California, San Jose Division.

Signed May 29, 2019

David Michael Birka-White, Birka-White Law Offices, Steven Todd Knuppel, Law Offices of Steven T. Knuppel, Danville, CA, John D. Green, Russell E. Taylor, Farella Braun Martel LLP, San Francisco, CA, for Plaintiffs.

Matthew Gordon Ball, K & L Gates LLP, San Francisco, CA, John William Edward Rotunno, Pro Hac Vice, Joseph C. Wylie, II, Pro Hac Vice, K and L Gates LLP, Chicago, IL, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND

[Re: ECF 36]

BETH LABSON FREEMAN, United States District Judge

Defendant Bosch Solar Energy Corporation ("Defendant" or "Bosch") moves to dismiss the first amended complaint ("FAC") filed by Plaintiffs Steve and Andrea Rojas ("Plaintiffs") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Court has considered the briefing, the oral arguments presented at the hearing on April 25, 2019, and the applicable legal authorities. The motion is GRANTED IN PART AND DENIED IN PART, WITH LEAVE TO AMEND for the reasons discussed below.

I. BACKGROUND

Plaintiffs allege the following facts, which are accepted as true for purposes of evaluating the motion to dismiss. At some unspecified time, Plaintiffs contacted a company called "Sullivan" to inquire about buying solar panels for their home. FAC ¶ 133, ECF 32. A Sullivan representative named Hans Berg ("Berg") told them that panels manufactured by Defendant Bosch were of the highest quality, would last for at least twenty years, and would produce 80-90% of their rated power for the number of years specified. FAC ¶¶ 133-36. In October 2012, Plaintiffs entered into a Prepaid Solar Power Agreement with non-party Kilowatt Systems, LLC ("Kilowatt"), under which Plaintiffs paid $ 25,339.22 for the installation and use of forty-two Bosch c-Si M 60 NA30119 Panels on their property. FAC ¶ 29. Sullivan installed the panels on Plaintiffs' property in a ground-mounted array in March 2013. FAC ¶¶ 139, 145.

Bosch solar panels are covered by a "Limited Warranty for photovoltaic modules" ("Limited Warranty") covering both material and workmanship ("Product Warranty") and loss of performance ("Performance Warranty"). Limited Warranty, Exh. A to FAC. The Product Warranty guarantees that the solar panels are free of defects in material and workmanship for a period of ten years from the date of delivery. Limited Warranty ¶ A. The Performance Warranty guarantees that the solar panels, also referred to as the "Module," will: "a) within a period of ten years from the date of delivery provide at least 90%; and b) within a period of 25 years from the date of delivery provide at least 80% of the minimum performance set forth in the data sheet...." Limited Warranty ¶ B. "These Warranties are granted to the Consumer or shall transfer from the Consumer to subsequent buyers / end users for the remainder of the warranty period, provided the subsequent buyers / end users can show that the Modules have not been modified or relocated from their originally installed location." Limited Warranty ¶ C.1.1. The "Consumer" is defined as "the final customer or end-user that properly places the Modules into operation for the first time." Limited Warranty ¶ A.

The Limited Warranty sets forth requirements for "Warranty Claim Verification and Procedure," directing that claims be submitted "within three (3) months of the occurrence of an event placing the Consumer on notice that a claim under one of the warranties has or may have arisen." Limited Warranty ¶ C.3.4. "All warranty claims must be accompanied by (i) the original bill of sale for the Module, and (ii) proof that (a) there is a defect in the materials and/or workmanship of the Module, or (b) the performance of the Module no longer meets the minimum performance warranted by Bosch Solar Energy Corp." Limited Warranty ¶ C.3.2. "Module performance shall be measured by Bosch Solar Energy Corp. under standard test conditions (25°C cell temperature, irradiation 1,000 W/m² and spectrum AM 1.5)," and "[t]he Consumer is responsible for maintaining the standard test conditions while producing evidence that the performance has fallen below the guaranteed minimum performance." Limited Warranty ¶ C.3.3. If these requirements are met, "[t]he sole obligation of Bosch Solar Energy Corp. under these warranties shall be, at its sole discretion, to (i) replace the Module with a functional module of the same type, (ii) remedy the defects, or (iii) refund the unamortized portion of the purchase price of the Module." Limited Warranty ¶ C.2.4. If testing determines that the Module meets the minimum performance warranted, or that the failure to do so is the result of a condition not covered by the Performance Warranty, Bosch "shall be entitled to reimbursement of the cost of conducting such tests from the party submitting the warranty claim." Limited Warranty ¶ C.3.3. Finally, the Limited Warranty provides that "[a]ll disputes arising from this warranty shall be governed by the laws of the State of Michigan and conflict of law rules shall not apply." Limited Warranty ¶ C.3.5.

In April 2017, Bosch issued a voluntary recall of 28,000 roof -mounted Bosch c-Si M 60 NA30119 Panels based on a defect in the panels' solder joints that generated excessive heat, posing a risk of igniting roofing materials. FAC ¶¶ 9-11. Plaintiffs claim that the defect in the solder joints also posed a risk of igniting debris or other materials near ground-mounted installations, although ground-mounted installations were not included in the recall. FAC ¶¶ 10-12. Plaintiffs also claim that, in addition to the defective solder joints, the Bosch c-Si M 60 NA30119 Panels have a defective backsheet. FAC ¶ 16. A backsheet is a plastic sheet that is necessary to protect the panel from moisture penetration. Id. "In 2017, the Rojas requested that Bosch replace the solar system pursuant to the Bosch Recall Notice. Bosch has failed to do so despite numerous requests even after their representative informed Plaintiffs that the panels would be replaced." FAC ¶ 143. "The Rojas also provided Bosch with written notification of the breach of warranty and have requested that Bosch replace the defective panels to no avail." FAC ¶ 144.

Plaintiffs filed this putative class action on September 24, 2018, asserting claims for breach of warranty and unfair competition on behalf of all persons or entities who purchased and installed Bosch solar panels in the United States or who purchased property on which Bosch solar panels previously were installed. Compl., ECF 1. Several weeks after filing suit, Plaintiffs purchased the solar panels on their property from Kilowatt. FAC ¶ 147, ECF 32. On January 4, 2019, Plaintiffs filed the operative FAC, alleging claims for: (1) breach of express warranty under unspecified state common law; (2) breach of express warranty under the Magnuson-Moss Warranty Act; (3) breach of express warranty under California Commercial Code § 2313 ; (4) violation of California's unfair competition law; (5) unjust enrichment; and (6) violation of California's Consumer Legal Remedy Act. Defendant moves to dismiss all claims under Rule 12(b)(6).

II. LEGAL STANDARD

"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim." Conservation Force v. Salazar , 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted). While a complaint need not contain detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

When evaluating a Rule 12(b)(6) motion, the district court must consider the allegations of the complaint, documents incorporated into the complaint by reference, and matters which are subject to judicial notice. Louisiana Mun. Police Employees' Ret. Sys. v. Wynn , 829 F.3d 1048, 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ).

III. DISCUSSION

Plaintiffs' claims may be divided into two categories. In the first category are Claims 1, 2, and 3, in which Plaintiffs assert that Defendant Bosch breached the express Limited Warranty under common law (Claim 1), the Magnuson-Moss Warranty Act (Claim 2), and California Commercial Code § 2313 (Claim 3). Specifically, Plaintiffs allege that "Bosch has breached the Product Warranty because the panels have solder joint and delamination

defects," and that "Bosch has breached the Performance Warranty because Plaintiffs have experienced a degradation of power below the output promised by Bosch." FAC ¶¶ 195-96; see also FAC ¶¶ 204-10, 218-22. These claims appear to be limited to claims arising from the Bosch c-Si M 60 NA30119 Panels.

In the second category are Claims 4, 5, and 6, which are grounded in the requirements for Warranty Claim Verification and Procedure. Plaintiffs contend that meeting these requirements would be impossible, because the Limited Warranty does not disclose what testing procedures would satisfy the "standard test conditions," and any attempt to meet the requirements would be so costly as to equal or exceed the expense of replacing the solar panels. FAC ¶¶ 229-230, 240, 252. Plaintiffs assert that the requirements for Warranty Claim...