Banks v. Nissan North America, Inc.

301 F.R.D. 327, 2013 WL 6700299, 2013 U.S. Dist. LEXIS 178510
CourtDistrict Court, N.D. California
DecidedDecember 19, 2013
DocketNo. C 11-2022 PJH
StatusPublished
Cited by1 cases

This text of 301 F.R.D. 327 (Banks v. Nissan North America, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. Nissan North America, Inc., 301 F.R.D. 327, 2013 WL 6700299, 2013 U.S. Dist. LEXIS 178510 (N.D. Cal. 2013).

Opinion

ORDER GRANTING MOTION FOR CLASS CERTIFICATION; GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL

PHYLLIS J. HAMILTON, United States District Judge

Plaintiffs motion for class certification and motion for leave to file a fourth amended class action complaint came on for hearing before this court on October 30, 2013. Plaintiffs Brandon Banks, Erin Banks, and David Soloway (“plaintiffs”) appeared through their counsel, Kirk Wolden, Michael Ram, and Ryan Lutz. Defendant Nissan North America, Inc. (“Nissan” or “defendant”) appeared through its counsel, G. Charles Nierlich. Having read all the papers submitted and carefully considered the relevant legal authority, the court hereby GRANTS plaintiffs’ motion for leave to file a fourth amended class action complaint, for the reasons stated at the hearing, and GRANTS plaintiffs’ motion for class certification as follows.

BACKGROUND

This is a products liability class action involving Nissan vehicles. Plaintiffs Brandon Banks, Erin Banks, and David Soloway (“plaintiffs”) filed suit against defendant Nissan North America, Inc. (“Nissan” or “NNA”) as a result of problems that they experienced with the Delta Stroke Sensor, a brake component of their Nissan vehicles. Plaintiffs seek certification of the following class1:

All consumer residents in California who own 2004-2008 Nissan Armada, Titan (equipped with VDC), and Infiniti QX56 vehicles manufactured before April 1, 2008 (“Affected Vehicles”) and all consumer residents in California who do not presently own Affected Vehicles but incurred monetary loss caused by the failure of the Delta Stroke Sensor in their Affected Vehicles. This definition specifically excludes any and all persons who assert personal injury claims arising from or relating to the failure of the Delta Stroke Sensor in their Affected Vehicles.

In October 2006, the Banks plaintiffs purchased a used 2004 Nissan Armada vehicle. See Third Amended Class Action Complaint (“TAC”), ¶ 12. At the time of purchase, the vehicle had approximately 23,000 miles of use recorded on the odometer. Plaintiffs purchased an extended 75,000 mile warranty on [330]*330the vehicle. See id. Sometime in 20102, plaintiff Erin Banks was driving the vehicle, and as she approached an intersection at approximately 40 miles per hour with her two children in the back seat, she began to apply the brakes in order to stop at a red light in the intersection, but was unable to slow down. She repeatedly attempted to apply and/or pump the brakes without success, which resulted in her coasting through the intersection against the red light at approximately 40 miles per hour. See TAC, ¶ 13.

After three similar incidents of brake failure occurred, the Bankses took their vehicle to the dealer, Future Nissan in Roseville, CA Future Nissan inspected the Banks’ vehicle, and Brandon Banks was subsequently contacted by a service department representative who advised him that the vehicle had displayed a Diagnostic Test Code Cl 179, which purportedly correlated to the ABS control unit code for the Delta Stroke Sensor. TAC, ¶ 14. The Delta Stroke Sensor is an electronic component of the vehicle that interfaces with the Electronic Control Unit (“ECU”) on the vehicle. TAC, ¶ 24A. When the Delta Stroke Sensor fails, the electronic computer system in affected vehicles puts out diagnostic error code C1179. TAC, ¶ 24E.

By way of background, plaintiffs allege that the Delta Stroke Sensor measures the application of manual driver pressure to the brake pedal, by converting the movement of the brake pedal into an electrical signal that is then communicated to the ECU. Id., ¶ 24C. The ECU provides information to the ABS system, which determines how much vacuum pressure to apply to the power assist for each wheel’s brake. Id., ¶ 2DD. As such, the failure of the ABS system to accurately identify or determine the amount of power assist to deliver to each of the brakes, materially and adversely affects the braking power available to the affected wheel. Id.

Delta Stroke Sensor failures cause the device to erroneously report information to the ECU, which means that the ABS does not receive the information necessary to assess and apply power assist to the individual brakes. Plaintiffs allege that this malfunction results in the loss of approximately 60% of braking power. TAC, ¶¶ 24E-F; Dkt. 109 at 4.

When the Banks’ Nissan was diagnosed with the error code Cl 179, plaintiffs allege that the Future Nissan service representative further informed Mr. Banks that he had seen this failure on other occasions and that Nissan had issued an update relating to the problem, but that even after the update, vehicles would still experience Delta Stroke Sensor failures. TAC, ¶ 14. The service representative then told Mr. Banks that the only way to fix the problem was to replace the Delta Stroke Sensor at a price in excess of $1000. See id. Mr. Banks requested that Future Nissan cover the replacement of the Delta Stroke Sensor, but the dealership declined, telling him to take the issue up with Nissan.

On February 25, 2011, Mr. Banks contacted Pauline Reed at Nissan Consumer Affairs. Nissan responded on March 1, 2011, when Nissan regional specialist Cory Heinz contacted Mr. Banks in order to discuss the problem. See TAC, ¶¶ 15-16.

On March 4, 2011, Mr. Banks placed a follow-up call to Ms. Heinz, who informed Mr. Banks that he needed to bring his vehicle in for a second formal diagnosis at Future Nissan. Mr. Banks did so, and on March 7, he received a call from Future Nissan informing him that the dealership was waiting on Nissan to make a decision. TAC, ¶¶ 17-18.

On March 8, 2011, Ms. Heinz contacted Mr. Banks and informed him that Nissan had made the decision to deny coverage for the cost of replacing and repairing the Delta Stroke Sensor. Ms. Heinz indicated that the decision was based on various factors, including that plaintiffs’ warranty had allegedly expired. See id., ¶ 19. Ms. Heinz allegedly also told Mr. Banks that the decision was ultimately a business decision, and took ac[331]*331count of the fact that the Bankses had a lack of history of brand loyalty. Id.

As a result of Nissan’s denial, the Banks plaintiffs allege they were forced to pay a final cost of $967.13, which plaintiffs paid to Future Nissan. See TAC, ¶ 19. The Banks-es ultimately sold the vehicle because of their dangerous experiences with brake failure.

Plaintiff Soloway purchased a new Infiniti QX56 from Tustin Infiniti around June 2006. TAC, ¶20. Around August 2011, plaintiff Soloway’s brother-in-law, Ryan Rivera, drove Soloway’s wife and son to a basketball game when the brakes failed. Specifically, as the car approached a red light, Mr. Rivera pressed the brakes to stop the vehicle, but the brakes failed to stop the vehicle, and the car ran through a red light. Mr. Rivera was forced to use the emergency brake to stop the vehicle after running through the red light. TAC, ¶ 21. Soloway’s vehicle was towed to Laveo Automotive, and a diagnostic inspection revealed error code C1179. Solo-way called Tustin Infiniti, and a service representative told him that he had seen this failure before, but that the vehicle was out of warranty and the repair would cost approximately $1,000. TAC, ¶ 22. As a result, Solo-way was forced to replace the Delta Stroke Sensor at a cost of $618.84.

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301 F.R.D. 327, 2013 WL 6700299, 2013 U.S. Dist. LEXIS 178510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-nissan-north-america-inc-cand-2013.