Watkins v. MGA Entertainment, Inc.

• Decision Date: 26 July 2021
• Docket Number: Case No. 21-cv-00617-JCS
• Citation: 550 F.Supp.3d 815
• Parties: Robin WATKINS, et al., Plaintiffs, v. MGA ENTERTAINMENT, INC., Defendant.
• Court: U.S. District Court — Northern District of California

550 F.Supp.3d 815

Robin WATKINS, et al., Plaintiffs,

v.MGA ENTERTAINMENT, INC., Defendant.

Case No. 21-cv-00617-JCS

United States District Court, N.D. California.

Signed July 26, 2021

Mariana Aroditis McConnell, Nicole DeVanon, Kiesel Law LLP, Beverly Hills, CA, David S. Ratner, Shelley A. Molineaux, Ratner Molineaux, LLP, Walnut Creek, CA, Paul R. Kiesel, Kiesel Law LLP, Beverly Hils, CA, for Plaintiffs.

Frank P. Kelly, Amir M. Nassihi, Michael Kevin Underhill, Shook Hardy & Bacon L.L.P., San Francisco, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS

Re: Dkt. No. 17

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

Plaintiffs Robin Watkins and Adam Sensney bring this product defect case as a putative class action under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d)(1). They assert claims for negligence, breach of express and implied warranties, and violation of California's Consumer Legal Remedies Act ("CLRA") and Unfair Competition Law ("UCL") against MGA Entertainment, Inc. ("MGA"), which manufactures, sells and distributes a toy line called L.O.L. Surprise!, based on allegations that a product in the line, the 2-in-1 Glamper Fashion Camper ("Glamper"), had a defective button in which a child's finger could become trapped. According to Plaintiffs, Watkins’ daughter's finger did, in fact, become trapped and firefighters had to cut the Glamper off. Presently before the Court is MGA's Motion to Dismiss First Amended Complaint ("Motion"), in which MGA asserts that all of Plaintiffs’ claims fail to state a claim under Rule 12(b)(6) and should be dismissed. For the reasons stated below, the Motion is GRANTED.¹

II. BACKGROUND

A. The First Amended Complaint

This case involves an alleged defect in MGA's toy Glamper, a plastic recreational vehicle that expands to two feet tall and three feet wide. First Amended Complaint ("FAC") ¶ 2. According to Plaintiffs, "[o]ne of the selling features of the Glamper is that the front of the Glamper detaches from the camper portion to become its own car." Id. ¶ 3. This is accomplished by "push[ing] a small button at the bottom of the [G]lamper and simultaneously pull[ing] the two pieces apart." Id. ¶ 4. Once expanded, accessories in the back portion of the Glamper can be accessed, including "a 2-story water slide, pool, bunk beds, D.J. Booth, Café, Fashion Runway, and Vanity Room with mirrors, opening drawers and closets." Id. ¶ 2.

Plaintiffs allege that "[d]ue to the product's defective design, depressing the button while simultaneously pulling allows the user's finger to get caught between the button and the piece being slid out." Id. ¶ 4. In particular, Plaintiffs allege, "The design of the release button allows a user's finger to become trapped between the depressed button and the hole into the bottom of the Glamper." Id. ¶ 23. "When a user tries to pull their entrapped finger out, it only serves to narrow the exposed hole and tighten the entrapped finger further." Id.

Plaintiffs allege that "[t]here have been numerous reports of injury, including but not limited to Plaintiff Watkins’ child's own injuries as a result of use of the Glamper." Id. ¶ 5. They further allege that MGA was aware of these injuries but instead of recalling the product, placed a "Safety Notice" on its Facebook page, a warning that was "woefully inadequate in its wording" and also fell short because it "assume[d] users of the product are actively on Facebook and follow the company's Facebook page." Id. ¶ 6.

According to Plaintiffs, MGA released the Glamper on July 22, 2019 and sold it through its own website and numerous retailers including, but not limited to, Amazon, Walmart, Toys R Us, Kohls, and Best Buy. Id. ¶ 7. Plaintiffs allege that "MGA warranted that the Glamper was appropriate for ages 3+." Id. ¶¶ 8, 55, 69, 78. They further allege that "[t]he only warning provided with the Glamper states "CHOKING HAZARD—Small Parts. Not for children under 3 yrs." Id. ¶ 9. While the manual listed certain "Important Information," Plaintiffs allege, "[n]othing in the ‘Important Information’ alerts users to the dangers lurking underneath the Glamper." Id. ¶¶ 10-11. Plaintiffs allege that "[d]ue to the significant injuries suffered by numerous children as a result of using the Glamper, its design was modified" to include a rubber gasket around the button so that "fingers cannot get caught in the button." Id. ¶ 12.

There are two plaintiffs in this action: Robin Watkins and Adam Sensney. Id. ¶¶ 13-14. According to the FAC, in 2019, Watkins’ eight-year-old child, R.C., received the Glamper as a Christmas present from her grandmother, who purchased the Glamper on December 4, 2019 for $89.99. Id. ¶ 18. On December 25, 2019, R.C.’s father assembled the Glamper, following the instructions provided by MGA with the Glamper. Id. ¶ 19. On February 10, 2020, "R.C. was playing with the Glamper in the family room when her mother heard loud screaming." Id. ¶ 20. According to Plaintiffs, "R.C. was on the floor with the Glamper upside down, screaming in agony" with her right thumb "stuck in the defective release button." Id. ¶¶ 20-21. Plaintiffs allege "R.C.’s finger was trapped in the Glamper for an hour and a half causing considerable swelling and loss of circulation to her thumb." Id. ¶ 24. According to Plaintiffs, seven members of the local fire department had to "saw and cut the Glamper apart" to remove it from R.C.’s thumb, which took thirty minutes. Id.

Plaintiffs allege that on the day of the incident, Watkins called and emailed MGA to inform them of what had occurred and requested that MGA contact her immediately. Id. ¶ 25. On February 20, 2020, after having received only an automated email response, Watkins again emailed MGA. Id. ¶¶ 25-26. Plaintiffs allege that Watkins "finally received a phone call from MGA" and was told by the individual who spoke to Watkins that "the product had been redesigned and the decision to alert consumers currently in possession of the defective model was not within her control." Id. ¶ 27. Plaintiffs allege MGA sent Watkins fifteen LOL. Surprise! Dolls to "appease" her and that Amazon reimbursed her for the purchase price of the Glamper. Id. ¶ 29.

The FAC alleges that Plaintiff Sensney "came in possession of the Glamper when it was purchased for $89.99 from an online retailer for his daughter, age 7, by his mother-in-law, and shipped to his home in Walnut Creek." Id. ¶ 30; see also id. ¶ 66 ("Plaintiff purchased the Glamper manufactured by Defendant, or in the alternative, the product was purchased by a close family member for his child's use.").² According to Plaintiffs, "Plaintiff Sensney learned of the traumatic incident sustained by R.C. and took the Glamper away from his daughter." Id. ¶ 31. Sensney "does not allow his daughter to play with [the Glamper] for fear of injury similar to R.C." Id. Plaintiffs allege that Sensney has not been reimbursed for the Glamper. Id. ¶ 32.

Plaintiffs seek to certify a class of "[a]ll persons who had or still have the original version of the MGA L.O.L Surprise! 2-in-1 Glamper Fashion Camper." Id. ¶ 33. The putative class "specifically excludes damages for personal injury." Id. ¶ 37. Plaintiffs assert claims for negligence (Claim One), breach of implied warranty (Claim Two), breach of express warranty (Claim Three), violation of the CLRA, and breach of the UCL. All of these claims are asserted by Plaintiff Sensney and the putative class; Plaintiff Watkins joins in only on the CLRA claim.

B. The Motion

In the Motion, MGA contends all of Plaintiffs’ claims must be dismissed for failure to state a claim. MGA argues that Claim One, asserted only by Plaintiff Sensney, fails because under the economic loss rule, a plaintiff who experiences purely economic injury cannot bring a negligence claim based a defective product in the absence of a special relationship between the parties, which does not exist between MGA and Sensney. Motion at 5-6.³

MGA argues that Plaintiffs’ breach of express warranty claim (Claim Three) is defective for several reasons. First, it contends a claim for breach of express warranty requires that the exact terms of the warranty must be pled, but here Plaintiffs allege only that "MGA warranted that the Glamper was appropriate for ages 3+" (FAC ¶¶ 8, 55, 69, 78) without providing the specific wording of the warranty or any facts about where it can be found. Id. at 7.

Further, MGA contends that to the extent Plaintiffs are relying on the product manual, which has "Age 3+" printed adjacent to the "choking hazard" language cited by Plaintiffs (FAC ¶¶ 9, 56, 70, 79), this language is not an express warranty that the product is safe for children three years and older but instead, a warning that it is unsafe for children under three.⁴ Id. According to MGA, "A warning that a product may not be safe in one situation cannot be reasonably read as a guarantee that it will be safe in all others." Id.

Even if the "Age 3+" printed in the manual were an express warranty, MGA asserts, it would relate only "to the potential choking hazard ‘small parts’ may pose to children under three years of age" and would have nothing to do with the claim in this case, involving an alleged harm unrelated to the potential choking hazard for children under three. Id. (citing In re Google Assistant Priv. Litig. , 457 F. Supp. 3d 797, 835–36 (N.D. Cal. 2020) ).

Next, MGA argues that Plaintiffs have not stated a claim for breach of express warranty because such a claim is based on the premise that the alleged promise was "part of the basis of the bargain" and that is not the case here because neither plaintiff bought the product. Id. at 8 (quoting Aaronson v. Vital Pharm., Inc. , No. 09-CV-1333 W, 2012 WL 12844724, at *3 (S.D. Cal. Feb. 3, 2012) ).

MGA also argues that Plaintiffs cannot state a claim for breach of express warranty based on the 30-day limited warranty on the Glamper covering manufacturing defects. Id. at 8. MGA concedes that this warranty is not...