marketed as just as an extra option of course their race truck breaks but their cars are in the showroom as with these brakes on their very large they're very pretty they're yellow and if you go in and you're looking to buy a high end car around the track because most people buying these cars they're buying them just because they have the money and they like the looks and so forth so it's the cars are hundred thirty thousand one hundred fifty thousand dollars cars so someone goes in  these brakes are great brakes and they cost one thousand dollars and that's it in this case our client purchased the car well the least the car he used his son to help in research the car the son went online to research about the car and then they went to the dealership and lease this car at the time of leasing it nobody discussed the brake noise with them they discussed all the options that this car doesn't include these rates but no discussion of the noise the least is the car and then shortly after he starts hearing the noise and repeating it repeatedly he brings it back to the dealership and the dealership tells him that these brakes are fine they're functioning as designed and there's nothing wrong with them and sometimes they don't document the visits other times they documented his extent visits and this is quite common at the dealerships with other class representatives as well throughout the complaint we've cited several complaints from other consumers who bought the cars and at various times it seems that you can have two kinds of that affect of products you can have either one that differs from the intended result or it differs from other essentially identical units of the same product so each one of those we are arguing both in the complaint so we are allowed at this stage to argue competing causes of action i we are arguing both in the complaint so that goes to the express warranty issue where in the lower court ruled that because we are arguing a manufacturing defect no i'm sorry because we're arguing a design defect the court ruled that the manufacturing defect couldn't stand and that the express warranty couldn't stand  well actually all three of the first three are are regarding the implied warranty so the argument is that in the factual allegations we've alleged that the vehicles manifest the defect in the various forms and shapes in other words one of the starts having the one is that one hundred miles the other one to two thousand miles some vehicles make excessive noise while others make a different kind of screeching noise and so forth and the argument there is that baker and horror that they believe the these allegations amount to a manufacturing defect basically saying the brakes are defective but in various ways so one car was produced some other in a fashion where the brakes make noise at five thousand miles when it's cold outside the other one produces noise when it's a hundred miles and it's warm outside so these go outside the differential performance warranty violation but then when the file their motions were realized we need to pinpoint that as a reason and so that's how we meet the requirements for the express warranty and again the these two can be competing for the express you're in with the u s and people at the b m w and the m w in germany and b m w m which is the vision of b m w that makes these cars they all new they all tested this car they knew it before releasing the car that these question b m w argues that there was no exclusive knowledge well it's a fact it's a matter of fact that needs to be decided by the jury the second element is active concealment the lower court ruled that we do have we have played sufficiently when what and how it was actively concealed they knew the defect they did not disclose that the description of the brakes in my opinion should say high performance noisy brakes then you would have disclosure but if it says high performance rate then you don't have hazard so the safety hazard is in the lower r p m but the main thing is number one we do not have to have a safety hazard because if we argue that during the warranty period we have to have safety hazard then means manufacturers can issue so too bad because that's their position right now so but we do have a seat the argument the noise is very loud and it distracted distracts the driver and distracts the third party people around the car when when you're driving this car so we've played it now a jury might find that it's not you know at the level of being on safe but that's for the jury to decide we've done our job in terms of pleading the extend that to the extent that there is a safety concern and then the second part is we have to plead a nexus between the defect and the safety well the nexus is that the brakes make the noise which make you worried and then you overreact you oversteer you over break or you push the gas pedal you let go of the brake because you  didn't know what's going on and i guess your argument is it doesn't need to be as bad as a sunroof with papers flying out the ceiling yesterday well we don't know is it as bad or is it worse because let's say you're driving and you hit the brakes and then you hear  very loud noise and you're scared and you let go of the brake because you think something's wrong maybe you're not supposed to be pushing but in reality you should be pushing the brakes and then you hit the car in front of you because you were not the actual issue and right it's all there any evidence of that having occurred well we have allegations that people our client was driving and people around him like valley drivers and other people would turn and they would get scared thinking there's an accident happening he would himself you know initially i suppose when you're driving it initially you don't know so you react to it differently after a few months you know your car is making this noise but you still have this has it taishan that because you're not sure what and i guess your answer is no well we have what i said we have but you anticipate something but nothing has occurred and nothing in terms of an accident no not an accident  way of assessing unfairness on their u c l is the balancing harm vs the benefit the harm is our clients are paying eight nine thousand dollars for an option that there don't like after one state use it they find out what's what comes with that option there we fuse the repair their refuse documentation of their concerns a lot of times and we are trying to sell the car later on they have to discount the car because you know if you're being honest like you should be then you tell the guy this i you can get normal brakes but then you lose it losing eight nine thousand dollars in the normal brakes provide prism cost a thousand dollars or two whatever the cost is much lower so you are throwing away seven eight thousand dollars and i think the confusion in the lower court was that the fight is over noise so it's very easy to just look at the factual and to presume well there's noise how that could really be and then start making factual rulings which is what happened rather than saying let's think of this as just at the effective component it's not the breaks it's just another the radio every few minutes or your radio cranks up and starts making loud noises that normal it's not normal so let the jury decide what the there that there's two two elements we have to meet the product most passed with odds of that without objection in the trade this is a factual issue does the product perform or is it of such kind that within the trade will consumers feel that it's functioning properly will other experts feel that it's functioning properly again it's not a twelve the six topic and we have pled in the complaint that clients consumers class members do not like it we've also pled that other manufacturers don't think to be there and then the second element is is this car fit for ordinary purpose the standard of review is not whether the classic car can take you from point a to point b the standard is is it within the parameters of your expectations for ordinary purpose of driving i mean would it be ok for your radio came on every two minutes and started blasting no it's not fit for ordinary use the same thing here the brakes should not make this loud and obnoxious and you're popping noise we didn't go this far but i the implied warranty work and ability in finally the fraud based claims based on the unfair competition law but before i get into that i think one of the important attributes of this case that permeates and i know it was played a very significant role to the district court there are unusual circumstances with this case factually the first one is that there's never been a characteristic or an allegation that the brakes failed perform they are fully functional there's no allegation that they couldn't stop in other words this is a situation where essentially the brakes did what they were supposed to do second there has been never been an allegation of intentional misrepresentation councils talking about in omission or a duty to disclose but never has there been a statement that there was a misrepresentation and in fact duty to disclose is a very strange animal here because it's undisputed that there was a disclosure in the actual owners manual and third in the council did refer to this these are not normal brakes that's one thing we can all agree on these are specialty brakes they're high performance carbon ceramic brakes they are made for racetracks but they're made for very very high intensity speed and then stopping fast it causes friction you can get one or you cannot get what that is correct but if you get one then you would like it perform as you like it to perform as the brakes are supposed to perform and that's the real issue that how do we know i mean that seems to me to be we could argue about that but if there's an allegation it's not performing correctly and it's that they don't all perform the same and it doesn't perform to the intended design why isn't that summary judgment matter i think i think it is especially when we're looking at this allegation of this press warranty i mean we have to determine and take a hard look at what is the difference between the manufacturing a manufacturing design and a  design defect itself that what the warranties always cover is manufacturing defects in materials and workmanship what we have here is a classic design defect the allegation is not this one car has weiqi brakes and it's not fitting in with how they should be the allegation is all of the ceramic brakes in these models are allowed that is a classic design de which takes it out of express warranty the grab them and of the complaint is very very clear here let me just ask you this i heard the argument i'm reading that complain it's that in fact it's not that there's a design defect with all of them it's just it's that the disparate performance among the breaks puts you into that difference from identical product units that's the applied then to this particular these models all of the vehicles involved have these high pitched sound that the real allegations especially when you look at like the first of many complaints for example originally let's look at the third amendment right right if we can we look at the third man everyone got us martyr as well if i was about to make that comment and you are correct because those allegations of inherent defects causing loud noise has disappeared amazingly as that is progress but it doesn't change the fact that what the what the real allegation involved here is the allegations attack the choice of the materials that are being used to create the product in other words the the problem in this case is with the design it's not saying that here is how the brake should be for ceramic brakes and here's the problem with this car because it doesn't meet that standard what it's saying is these materials that are being used are being used in such a way that they all of the brakes have the same problem that takes it out of express warranty and the law is is really very clear on that are both briefly to the implied warranty claim again very well over the years you know it's not that the the the main effects are or the seller has to have a perfectly are a every detail but it has to be reasonably suited for ordinary use the troop case that we cited i think is very important because it talks about that the reach of implied warranty comprises of vehicle safety rendering it in operable drastically reducing mileage in other words significate defects well say safety is its own thing correct that's not so simple as american public safety cama all the other thing correct so right here the argument and it may turn out that it has nothing that would really rise to the level of safety but there is a safety allegation made so why does that get dismissed and the motion to dismiss did you know there's there's significant legal authority talking about what it takes to make the proper  allegations are being used here the say that there is a distraction for the driver or in the allegations or maybe even to third parties but if you look carefully at brand it's talking about real world things it's talking about an event that happened to this particular individual he was driving the car he had papers in the front seat the window open unexpectedly he had no idea it was going to open it opened the wind came down blew the papers it got in his way he had actually pulled off the road because he thought it was a good situation that's a real event where you don't have to well you know i got too far in that because i would hope under a safety allegation you don't have to wait for the case is he and he ended it with this sentence that this alone without more but he didn't really say what the more would be what's the standard more would be this for all we know this case could be the more it could be it could also have the more that we don't know because we haven't developed the facts yet in this case and that goes back to  express warranty argument as well because we don't know whether you have a suitable being your client has a suitable design in place and we don't know if the manufacturing process somehow deviated and did at creating a situation where think is important also because it displays another feature i think that's important for going to make an allegation of the of some kind of a situation that creates a distraction i think a key thing that the court i think recognized in its order was that you know there's a difference between something that is a complete surprise scenario i mean this individual did not know that that window was that the sun roof was going to be opening and closing i mean the allegations in this complain are very clear they're saying that when they put on the brakes it squeaks this is not something that would surprise an individual or cause a distraction because it's something that that's what the brakes do but they don't do it all the time they do it according to the allegations most of the time but not all of the time i agree with that but so and i guess well if i'm rereading brand here and you're trying to fit your argument into it because they talk about the element of surprise but i don't know if we have a case that says where you need like a first time surprise to cause the problem or if there's multiple surprises but not a surprise every time i'm not quite sure under california law where the line is drawn because you always have these cases like a brand which you know that you could say well that's really amazing that that happens but it that case doesn't really suggest that the only kind of surprise that would qualify as a baseline allegation is there another case we should be looking at that incorporates this implied warrant where the window was going up and down and they said there was a actually a safety violation there because it was again unknown you didn't know when it was going to happen and things could obviously flying to the car so it was a safety defect but we don't have that situation the brakes are on the outside and this is something that could be recognized you know it we can't lose focus i think your honor on what was disclosed taken under judicial notice by this court and i fight if you if you bear with me i conditions just before the vehicle comes to a stop i'm just wondering what exactly is that mean well i think it means i think a fair reading of that means you're on or louder noises your brakes are going tonight or loud noises functioning i would and and i think the language before that is important because it talks about why it says the high performance braking system has perforated carbon ceramic brake this in his design for use use on racetracks due to the properties of these materials used braking may be associated with the latter function noises particularly in wet conditions just before the vehicle comes to a stop and then it says of course there's no effect on the performance of operational rhyolite reliability that's exactly the point these brakes are made exactly to be made the way they are it's not technically defective and that's an important component to what we're dealing with here if i could i you know my running out of time just to talk to the u issue the law in this circuit is really crystal clear and has been so for about twelve years since the dorothy decision and that is that the rule is that a manufacturer has no general duty to disclose information absent one an affirmative misrepresentation or to a safety issue this just is not  situation that these this rule applies the the ferment of misrepresentation as i said at the beginning of my remarks doesn't exist no one can say that what was said is misrepresented and second in my view and i think i think we have a lot of authority to support that in our brief the allegations here do not touch on a safety issue so if i agree with you on the duty to disclose but if we were to disagree with you on the implied warranty which i think it's predicated on safety would that necessarily but in the same box as the u c l safety issue or is there something else to distinguish it i think  i suppose excise the safety issue from the pleadings in your view they simply haven't planned enough with respect to safety would you have to show  a particular you know occurrence of a safety hazard or what do you think needs and i would argue they have not played a safety issue per se the the williams case is a good case to look at the talks about when you talk about hypotheticals in conjecture and you really not another word you're working trying to really work to get the facts out there and it doesn't exist that's what's happened here as as your own has said this thing morphed from the beginning of the cases  where they're talking about inherent defects and it morphed into to get try to comply that's what these these complaints were flecked they reflect an attempt to try to fit in and to be perfectly honest with you the allegations just simply don't think you as they wish therefore there is no failure is just like the radio analogy if the radio plays music that then randomly goes loud there's could do both you could perform to the extent they designed it but you could also exhibit a defect and then the intentional misrepresentation tells you that's going to happen yes let me go let me refer to that the owner's manual was not on line and was not available for consumers to read it we have a printout i believe in our exhibit which we're going to use later that the owners m you don't get an owner's manual back that you get it after you buy it you sign in and they give you with the paperwork but there it's not online for you to go to read it and the mourners manual itself is not clear and this is why de had to issue a service bulletin that explains to their own