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 This disposition is not designated for publication in the official reports. 1

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

**E-Filed 7/21/2010**

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

MOLLY STEARNS, et al.

 Plaintiffs,

 v.

SELECT COMFORT RETAIL CORPORATION,

a Minnesota Corporation; BED BATH &

BEYOND, INC. a New York Corporation; and

THE SLEEP TRAIN, a California Corporation,

 Defendants.

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' 1

MOTIONS TO STRIKE AND

DISMISS, AND DENYING

PLAINTIFFS' MOTION FOR LEAVE

TO FILE THEIR FOURTH

AMENDED COMPLAINT

[re: docket nos. 77, 80]

I. BACKGROUND

A. Procedural history

On April 25, 2008, Plaintiff Molly Stearns (“Stearns”), a California resident, filed a

complaint in the Santa Clara Superior Court alleging that she had found mold in a Sleep

Number® bed purchased at Bed Bath & Beyond (“BBB”) in 2000. The complaint alleged claims

for strict product liability, intentional misrepresentation, negligent misrepresentation,

concealment, breach of express warranty, and breach of implied warranty. Stearns also sought to

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

bring a class action on behalf of all original purchasers and users of Sleep Number® beds

manufactured between January 1, 1987 and December 31, 2005. Defendants Select Comfort

Retail Corporation (“Select Comfort”) and BBB removed the action to this Court and then

moved to dismiss all of Stearns’ claims except for the product liability claim and to strike the

class allegations. On October 1, 2008, the Court dismissed the complaint with leave to amend. 

In striking Stearns’ class claims, the Court noted the inherent difficulty of maintaining a class

action arising from alleged personal injuries. Dkt. No. 28 at 11-12. 

On October 30, 2008, Stearns and additional named plaintiffs filed their first amended

complaint (“FAC”), amending their previous claims and adding a new defendant (Sleep Train). 

The FAC also included new claims for relief based upon (1) negligence; (2) violation of the

Magnusson-Moss Warranty Act (“MMWA”); (3) unfair competition pursuant to the California

Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (4) false advertising

pursuant to the California False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et

seq.; (5) violation of Section 1 of the Sherman Act; (6) violation of California’s Cartwright Act;

(7) violation of the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code §

1750; (8) violation of the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. § 1962(c); (9) conspiracy in violation of RICO, 18 U.S.C. § 1962(d); and (10) violation of

the Consumer Product Safety Act (“CPSA”), 15 U.S.C. § 2064, et seq. In addition, the claim for

breach of express warranty was asserted expressly pursuant to Uniform Commercial Code

(“UCC”) § 2-313. The implied warranty claim was bifurcated into separate claims for breach of

the implied warranty of merchantability (UCC § 2-314) and breach of the implied warranty of

fitness (UCC § 2-315). In total, Plaintiffs asserted seventeen claims for relief, none of which

included claims based upon personal injuries. On June 5, 2009, the Court granted Defendants’

motion to dismiss with leave to amend in part. Leave to amend was limited expressly to

Plaintiffs’ claims based upon negligence, strict product liability, breach of express warranty, and

violations of the MMWA and UCL. The Court also granted Defendants’ motion to strike

Plaintiffs’ purported class claims. The Order stated clearly that Plaintiffs could “not add any new

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

defendants, plaintiffs or claims for relief without leave of the Court.” Dkt. No. 59 at 29. 

On July 6, 2009, Plaintiffs filed their second amended complaint (“SAC”), asserting

claims for negligence, strict product liability, breach of express warranty, and violations of the

MMWA and UCL. The SAC also included a new claim under Florida’s unfair competition

statute, and personal injuries were alleged as a basis for Plaintiffs’ claims for negligence and

strict product liability. On December 4, 2009, the Court granted Defendants’ motion to dismiss

with limited leave to amend and struck Plaintiffs’ class allegations and newly-asserted claims

based upon Plaintiffs’ failure to seek leave of Court consistent with the June 5 Order. Dkt. No.

70 at 25. The Court again clearly informed Plaintiffs that they must seek leave of Court prior to

adding “any new defendants, plaintiffs or claims for relief.”

On January 4, 2010, Plaintiffs filed the operative third amended complaint (“TAC”),

again asserting claims for negligence, strict product liability, breach of express warranty, and

violation of the MMWA and UCL. On March 12, 2010, Defendants moved to dismiss the TAC

for failure to state a claim upon which relief may be granted and to strike all of the purported

class claims contained therein. On the same date, Plaintiffs moved for leave to file their

proposed fourth amended complaint (“PFAC”) which purports to refine all of their claims for

relief and adds class-wide and individual personal injury claims. 

B. General Allegations

Select Comfort first began designing, manufacturing, distributing and selling Sleep

Number® beds in 1987. TAC ¶ 29. A limited twenty-year warranty accompanied each Sleep

Number® bed. Id. Plaintiffs allege that the Sleep Number® bed is defectively designed, causing

it to develop mildew and mold. Id. ¶¶ 38-43, 72. They claim that the bed’s frame supports one or

two air chambers, also known as bladders, that are separated and surrounded by foam pieces

known as inserts or toppers. Id. ¶¶ 39, 40. The inserts and toppers then are “enclosed by another

level of foam and a cover which completes the enclosure. . .” Id. ¶ 39. The bladders are covered

with a canvas material that, along with the foam components, allegedly “absorb[s] moisture

which is never naturally ventilated due in part to the construction of the bladder which is a piece

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

of rubber or PVC sandwiched between two pieces of canvas.” Id. Plaintiffs allege that the bed’s

design is “inherently defective” because it “is an air bladder surrounded by forma and an

upholstered topper” which “acts as a vapor barrier preventing the permeation of air or

ventilation.” Id. ¶ 43. Plaintiffs allege that the “air bladder thereby allows moisture from

condensation or other sources to become trapped within the system – a trait not shared by

upholstered products.” Id.; see also id. ¶ 40 (alleging that “[u]pholstered products have the

ability for air to migrate throughout, thereby inhibiting the ability of the upholstered products to

retain a wet and damp state”, while “[t]he Sleep Number bed, as designed, prevents air migration

in order to allow the user to adjust and maintain the exact air pressure desired...when moisture

comes into contact with the vapor barrier, through condensation or other means, it does not dry

as it would with ventilated upholstered products. The moisture sits, stagnant, upon the vapor

barrier as designed and creates the perfect environment for mold incubation”). Plaintiffs claim

that Select Comfort has received thousands of complaints with respect to mold growth in its

Sleep Number® bed prior to and since 2004. Id. ¶ 47. 

Plaintiffs allege that in 2005, when Select Comfort made improvements to the Sleep

Number® bed, it applied mold inhibitors only to the “mattress covers.” Id. ¶ 77. This allegation

is contradicted directly by language found in Exhibit F (a Yahoo! Buzz article entitled, “The Real

Deal,” posted on June 8, 2008), which Plaintiffs themselves attached as an exhibit to the FAC. 

FAC Ex. F at 47. In this article, Select Comfort represented publicly that, “All key components

of the Sleep Number® bed – including foam, air chambers, and fabrics – are treated with a

proprietary anti-microbial agent to deter the growth of mold, mildew, and bacteria.” Id. 

Select Comfort’s limited warranty promises repair or replacement of a defective product

or component. TAC ¶ 34. The language of the limited warranty indicates that repair or

replacement of the defective product or component is the “exclusive remedy, in lieu of all

incidental, special or consequential damages, including for negligence...Select Comfort will bear

no other damages or expenses.” Id. (emphasis not in warranty, but added in TAC). Plaintiffs

allege that Defendants are unable to repair the defect and that replacements of the defective

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 Plaintiffs object to Defendants’ repeated assertions that Plaintiffs received refunds and 2

replacement parts in response to complaints of mold in their mattresses. Plaintiffs contend that

Defendants “inject the term ‘refund’ into this action as a red herring” and that Defendants’

references to refunds are “hearsay and must be stricken.” Plaintiff’s Objections at 3. However,

Plaintiffs themselves, both in their prior pleadings and the TAC, allege that certain Plaintiffs

received refunds and/or replacement parts. See e.g. FAC ¶¶ 189, 91; SAC ¶¶ 54, 56, 57, 61, 63;

TAC ¶¶ 54, 51, 56, 64. Factual assertions made in pleadings are considered admissions, see

Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002), and Defendants may rely upon

Plaintiffs’ admissions in asserting their legal arguments in support of the instant motion to

dismiss and strike. Accordingly, Plaintiffs’ objections with respect to Defendants’ references to

refunds are overruled. Plaintiffs’ other objections also relate to permissible legal arguments

asserted by Defendants, although the Court does not rely upon those arguments in the instant

order. 

5

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

product only have led to replacement of one defective part with another defective part. Id. ¶ 33. 

While the limited warranty does not mention explicitly the availability of a full refund for

customers who have found mold in their beds, Select Comfort in fact has offered, in addition to

replacement components and replacement of the entire bed, a full refund at no charge to

complaining customers. FAC, Ex. B at 17 (indicating in an online customer complaint board that

a customer who has an issue with mold is entitled to a full refund and providing the Select

Comfort Customer Care phone number). However, Plaintiffs claim that Select Comfort

“selectively enforces the terms of the warranty and provides refunds to customers in a selective

manner and customarily only to those that complain and assert injury beyond the product itself

and in some cases not at all.” TAC ¶ 34. 

C. Individual Allegations2

1. Molly Stearns

Stearns alleges that she purchased a Sleep Number® bed at BBB in 2000. She claims

that she discovered mold in her bed on or around April 22, 2008, contacted Select Comfort

customer service that same day, and subsequently received a refund check from Select Comfort

for $1,894.35 without having requested a refund and without any explanation as to the amount

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

provided. Id. ¶¶ 48, 64. The refund did not compensate Stearns for the “entire bed purchase

price, the property damage she sustained or for costs associated with replacing the defective

bed.” Id. ¶ 64, id. ¶¶ 116, 143 (alleging that Stearns purchased replacement bedding totaling

$282.26 and that the destroyed bedding cost significantly more than her replacement bedding).

Stearns claims that she replaced her bedding based on her own “research that mold spores can

become airborne and attach to other products in the immediate vicinity and at the urging of her

doctor and a mold consultant whom she engaged.” Id. Stearns purports to act as a California

class representative with respect to all of Plaintiffs’ claims. Id. ¶¶ 104-244. 

2. Ruth Rose

Ruth Rose (“Rose”), a California resident, alleges that she bought a Sleep Number® bed

in 1996, that she first found mold in her bed on or about May 23, 2008, and that she called Select

Comfort to complain of mold in her bed on that same day. Id. ¶¶ 18, 49, 53. Rose was told that

Select Comfort was aware of the mold problem but that it had changed the design in 2005 to

address the problem. Plaintiffs claim that Select Comfort’s assertion was false. Id. ¶ 53. Rose

alleges that she offered Select Comfort the opportunity to cure the defect and that it refused when

it “would not guarantee, under the terms of the warranty, that a design defect was not present and

that post 2005 beds would not incubate mold.” Id. ¶ 53. Select Comfort then provided Rose a

full refund for her twelve-year-old bed, but it did not provide any additional compensation for the

other property damage allegedly caused by the mold. Id. ¶¶ 54, 117, 144 (alleging that Rose

spent $4,600.00 on replacement bedding including four sets of sheets; two goose down

comforters; duvet covers; two bed skirts; pillow shams and four pillows). Like Stearns, Rose

purports to act as a California class representative with respect to all of Plaintiffs’ claims. Id. ¶¶

90, 104-244.

3. Dennis and Bonnie Fuller

Dennis and Bonnie Fuller (“the Fullers”), residents of Florida, allege that they purchased

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

a Sleep Number® bed on May 17, 1996. Id. ¶ 19. The Fullers first discovered mold in their bed

on or about June 16, 2008 and contacted Select Comfort about the mold before the end of the

year. Id. ¶¶ 50, 55 (alleging that “they were informed that Select Comfort was aware of the

problem and made changes in the design in 2005 specifically in response to consumer

complaints” and that “[t]his statement was untrue in that the design has never been changed”).

The Fullers were provided a refund for their twelve-year-old bed, but they were not compensated

for additional property damage they allegedly sustained or for the costs of replacing the defective

products. Id. ¶¶ 56, 118, 145 (alleging that their replacement bedding cost approximately $400

to $500, but that the destroyed bedding was more expensive than the replacements at

approximately $800-$1000); id. ¶¶ 119, 120, 146, 147 (alleging that the Fullers were forced to

spend approximately $9,050.42 to replace their heating, ventilation, and air conditioning

(“HVAC”) to mitigate the effect of mold contamination caused directly by the Sleep Number®

bed). The Fullers allege that Dennis Fuller’s primary care physician instructed that the HVAC

and bedding should be replaced and that an environmental test commissioned by the Fullers on

June 13, 2008 concluded that there was cladosporium mold in the HVAC system. Id. ¶¶ 120,

147. The Fullers purport to act as Florida class representatives for all of Plaintiffs’ claims. Id. ¶

90. 

4. Dan Schlesinger

Dan Schlesinger (“Schlesinger”), a California resident, alleges that he purchased a Sleep

Number® bed on November 2, 1994. Id. ¶ 20. Schlesinger’s factual allegations in the TAC, like

those in the SAC, are materially inconsistent with his allegations in the FAC. In the FAC,

Schlesinger alleged that he contacted Select Comfort in 2004 and that he received replacement

parts before the antimicrobial reformulation conducted by Select Comfort in 2005. FAC ¶ 189. 

Schlesinger claimed that these replacement parts subsequently developed mold and that when he

reported this to Select Comfort, he was provided a full refund on his fourteen-year-old bed. Id. 

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 Schlesinger claims that he found mold for the second time on August 11, 2008 and 3

engaged a mold expert on August 13, 2008. TAC ¶ 202. Schlesinger alleges that Select Comfort

refused him a refund but offered replacement parts. Id. These newly-alleged events occurred

two months before Schlesinger filed the FAC in which he alleged that he received a refund. FAC

¶ 189. 

 In paragraph 202, Schlesinger alleges that he rediscovered mold in the replacement 4

parts on August 11, 2008, while in paragraph 235, he alleges that he found the mold again in his

bed on August 11, 2009. The Court presumes that this contradiction is a clerical error. Because

Plaintiffs’ opposition papers refer to the August 11, 2008 date, the Court will do so as well. 

8

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

The TAC alleges that Schlesinger contacted Select Comfort in 2003, that Select Comfort

provided replacement parts on two different occasions, that both sets of replacements developed

mold, and that Schlesinger never received his “requested refund and reimbursement for all 3

expenses and property damage he sustained related to the moldy bed.” TAC ¶¶ 61, 62, 202, 235

(stating that he found mold again on August 11, 2008 or 2009 , but failing to provide any 4

explanation for why the facts he alleged in the SAC and TAC directly contradict those he

asserted in the FAC despite the Court’s expressed concern with respect to this contradiction in its

last order). Schlesinger alleges that he spent approximately $300 to $400 on replacement

bedding, that he bought the destroyed bedding at about the same price, and that he purchased a

replacement mattress for $2,379.00. Id. ¶¶ 121, 148 (alleging that Schlesinger replaced his

bedding after researching clorasporium mold). Schlesinger purports to serve as a California class

representative for all of Plaintiffs’ claims. Id. ¶ 90.

5. Karen and Bryan Williams

Karen Williams, a California resident, alleges she purchased a Sleep Number® bed from

Sleep Train for her son, Bryan Williams, on February 10, 2004. Id. ¶ 21. Bryan Williams, a

California resident, was the user of the bed. Id. The Williamses allege that they first discovered

mold in the bed on October 26 and December 30, 2006 “while inspecting the bed for mold

growth as instructed by Select Comfort in their product manual and at the urging of [sic]

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

toxicologist.” Id. ¶ 52. Karen Williams states that she contacted Select Comfort to complain

about mold in Bryan Williams’ bed in 2006 and 2007 and that replacement parts were sent to

Bryan Williams. Id. ¶ 57. The Williamses allege that the new parts developed mold and that “K.

Williams also called and reported mold to Select Comfort and Sleep Train after the new parts

began to develop mold, mildew, and wetness.” Id. Defendants contend that this allegation is

demonstrably false based upon a recorded customer service call dated January 26, 2007, during

which Karen Williams requested a refund for Bryan Williams’ bed but made no mention of

mold. Dkt. No. 59 at 3-4 n. 2 (clarifying that the Court need not consider the substance of the

telephone call to decide the instant motion, but recognizing that in the call Karen Williams was

talking about moisture in the bed rather than mold). 

On May 14, 2007, Karen Williams also sent a letter with return receipt requested to Lisa

Riedesel and Bill McLaughlin, the CEO of Select Comfort, complaining of the mold issues in her

son’s bed, the outstanding “need for a recall notice to be sent out to all those with Sleep

Number® beds,” and documenting several telephone calls to Select Comfort about the need for a

recall. TAC ¶ 58, Ex. C. However, while the letter reveals that the original bed developed mold,

it does not state that the replacement bed Defendants provided also had mold, but rather that the

“new bed pieces were completely soaking wet.” Id., Ex. C at 3-4 (contending that she was

instructed by a toxicologist to get the new bed out of the house and store it in plastic as it

“certainly appeared that the moisture problem that started the whole mold growing in the first

place had again started the process on the NEW BED!”).

On May 29, 2007, Karen Williams received a phone call acknowledging receipt of her

letter by Select Comfort. On June 1, 6, and 21, 2007, Select Comfort requested and received

documents from Karen Williams relating to property and personal injury damages related to her

son. Id. ¶ 58. On July 3, 2007, Select Comfort representative Lisa Riedesel contacted Karen

Williams by phone to “confirm whether she would remedy the property damage and injuries to

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

B. Williams and issue a recall or notification to the class.” Id. ¶ 59. Karen Williams alleges that

her request for a refund and reimbursement of expenses totaling $32,000 was refused. Id. ¶ 60. 

Finally, Karen Williams alleges that she spent approximately $500 on replacing the destroyed

bedding that cost approximately the same amount. Id. ¶ 149.

In response to customer complaints, Select Comfort redesigned the Sleep Number® bed

in 2005 to inhibit mold growth. Id. ¶ 77 (alleging that “only the mattress cover received an

inhibitor to prevent users from knowing that their bed was contaminated....[and that] this

inhibitor in no way addressed the millions of beds already in service and the defective design

which is the root cause of the mold). Plaintiffs allege that Defendants thus were on notice of the

defect in the beds. Id. Plaintiffs claim that Select Comfort nonetheless continued to distribute

defective replacement beds and parts to consumers who had mold in their older beds. Id. ¶¶ 66,

67. Moreover, when Select Comfort learned of the defect that caused the mold growth,

Defendants allegedly did not provide notice to the public or any warning to Plaintiffs of the

defect. Id. ¶¶ 68-70. Plaintiffs assert that putative class members and the named Plaintiffs have

“obtained replacement parts since the 2005 reformulation and the results are identical-mold

incubation in the internal components.” Id. ¶ 80. Plaintiffs allege specifically that “Schlesinger,

Rose, and Williams have each told Select Comfort that mold growth has occurred in their beds

since the 2005 reformulation,” but that Select Comfort continues to claim that “there have been 0

confirmed cases of mold in a Sleep Number® bed sold after the antimicrobial reformulation in

2005.” Id. 

Each named plaintiff claims to have discovered mold in his or her respective Sleep

Number® bed and to have removed or replaced his or her defective bed. Id. ¶ 84. Each claims

to have expended money to purchase replacement bedding, including sheets, pillows, comforters,

and blankets (“replacement bedding”). Id. Plaintiffs claim that the cost of their replacement

bedding has not been compensated. In addition, all Plaintiffs allege that they suffered damages in

the form of shipping and handling costs of “either replacement products or mold infected

products that they would not otherwise have spent were it not for defendants’ defective product.” 

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11

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Id. ¶ 86. Finally, for the first time, Plaintiffs allege that the design defect that causes mold

growth in the mattresses is outside the terms of the express limited warranty, which covers

“defects in material and workmanship” Id. ¶¶ 67, 73, 161 (stating that “this warranty does not

expressly address any remedy or limitation for design defects. As such, it does not apply to any

claim based on a defectively designed product, but only to the defective materials and

workmanship associated with the component parts of the product”). Plaintiffs do recognize that

the limited warranty also states that, “[t]he purchaser’s exclusive remedy...is limited to repair and

replacement of any produce [sic] or component deemed to be defective...” Id. ¶ 175. 

II. MOTIONS TO DISMISS AND STRIKE 

A. Legal Standard

1. Motion to dismiss

"Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a

cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v.

Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (citation omitted). For purposes

of a motion to dismiss, the plaintiff's allegations are taken as true, and the court must construe the

complaint in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 

89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). "To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its

face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, a court need

not accept as true conclusory allegations, unreasonable inferences, legal characterizations, or

unwarranted deductions of fact contained in the complaint. Clegg v. Cult Awareness Network,

18 F.3d 752, 754-755 (9th Cir. 1994). Leave to amend must be granted unless it is clear that the

complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245,

248 (9th Cir. 1995). When amendment would be futile, however, dismissal may be ordered with

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). 

On a motion to dismiss, the Court’s review is limited to the face of the complaint and

matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.

1986); N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). However, under

the “incorporation by reference” doctrine, the Court also may consider documents which are

referenced extensively in the complaint and which are accepted by all parties as authentic. 

Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 

2. Motion to strike

Pursuant to Federal Rule of Civil Procedure 12(f), the court may "strike from a pleading

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Where

the damages sought in a prayer for relief are not recoverable as a matter of law, a motion to strike

may be used to strike the prayer for such damages. Wilkerson v. Butler, 229 F.R.D. 166, 172

(E.D. Cal. 2005); Bureerong v. Uvamas, 922 F. Supp. 1450, 1479, n.34 (C.D. Cal. 1996), citing

Tapley v. Lockwood Green Engineers, Inc., 502 F.2d. 559, 560 (8th Cir. 1974).

The grounds for a motion to strike must appear on the face of the complaint or from

matter which the court may judicially notice and the court must view the pleading in the light

most favorable to the pleader. SEC v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995); Lazar v.

Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000), citing California v. United States, 512

F.Supp. 36, 39 (N.D. Cal. 1981). The central function of a Rule 12(f) motion is "to avoid the

expenditure of time and money that must arise from litigating spurious issues by dispensing with

those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

As with motions to dismiss, when ruling on a motion to strike, the Court takes the plaintiff's

allegations as true and must liberally construe the complaint in the light most favorable to the

plaintiff. Farm Credit Bank of Spokane v. Parsons, 758 F.Supp. 1368, 1371 n. 4 (D.Mont.1990)

(citing 2A Moore's Federal Practice ¶ 12.21[3] ). Leave to amend must be granted unless it is

clear that the complaint's deficiencies cannot be cured by amendment. See Lucas, 66 F.3d at 248.

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 Plaintiffs contend incorrectly that Defendants’ reliance upon this Court’s prior orders

5

and analysis of allegations pled in earlier complaints is improper in the context of the instant

motions to dismiss and strike. “The law of the case doctrine is a discretionary one created to

maintain consistency and avoid reconsideration, during the course of a single continuing lawsuit,

of those decisions that are intended to put a matter to rest.” Pit River Home & Agric. Coop.

Ass’n v. U.S., 30 F.3d 1088, 1097 (9th Cir. 1994). “Under the doctrine, a court is generally

precluded from reconsidering an issue previously decided by the same court, or a higher court in

the identical case.” Milgard Tempering, Inc. v. Selas Corp. of America, 902 F.2d 703, 715 (9th

Cir. 1990). Accordingly, Defendants’ citation of and this Court’s own reliance upon its

conclusions in prior orders is proper. Whether Defendants’ characterization of the prior orders is

accurate remains an issue for the Court’s determination. 

13

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

B. Discussion5

1. Legally Cognizable Injury

Plaintiffs cannot maintain a claim without properly alleging a legally cognizable injury. 

Khan v. Shiley, Inc., 266 Cal.Rptr. 106, 110 (Cal. Ct. App. 1990) (holding that a product liability

claim necessitates the allegation of a legally cognizable injury); County of Santa Clara v. Atl.

Richfield Co., 40 Cal.Rptr. 3d 313, 318 (Cal. Ct. App. 2006) (concluding that a plaintiff must

allege a legally cognizable injury to state a negligence claim); Williams v. Beechnut Nutrition

Corp., 229 Cal.Rptr. 605, 608 (1986) (holding that to state a prima facie case for breach of

express warranty a plaintiff must allege that the breach of warranty proximately caused an

injury); Cal. Bus. & Prof. Code §§ 17204, 17535 (identifying an “injury in fact” as a necessary

element of a UCL claim). 

Defendants contend that all of Plaintiffs’ claims for relief are insufficient because no

legally cognizable injuries have been pled. First, Defendants assert that the Court has determined

that the limited warranty bars all of Plaintiffs’ claims for incidental and consequential damages

(i.e., replacement bedding, shipping and handling), leaving only claims based upon the bed itself. 

Defendants argue that because either replacement parts or full refunds already have been

provided to each Plaintiff, Plaintiffs have no damages. However, as addressed below, see infra

III.B., the Williamses allege that their replacement bed’s inner parts were soaking wet and that

they never were provided a refund or non-defective replacement for this second mattress. In

addition, as addressed below, Plaintiffs now contend for the first time that the alleged design

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 The Court concluded in its last order and reaffirms its conclusion that the costs of 6

shipping and handling for the beds and replacement parts relate to the product itself and thus are

subject to the economic loss rule. Dkt. No. at 18.

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

defect that causes mold growth and incubation lies outside of the limited warranty. Accordingly,

Plaintiffs contend that their damages are not barred by the contract’s language excluding

incidental and consequential damages. 

Second, Defendants argue that Plaintiffs’ negligence and strict product liability claims are

insufficient because the economic loss doctrine bars damages based on the beds themselves,

replacement parts, or related shipping and handling charges. Robinson Helicopter Co., Inc. v.

Dana Corp., 34 Cal.4th 979, 988 (2004) (citations omitted) (concluding that when “a purchaser’s

expectations in a sale are frustrated because the product he bought is not working properly, his

remedy is said to be contract alone, for he has suffered only ‘economic’ losses.”). Plaintiffs

claim that they have alleged harm beyond a broken contractual promise because they suffered

property damage to replacement bedding and because the Fullers in particular were forced to

replace their HVAC system. 

In its last order, the Court determined that these same allegations were insufficient to

create a cognizable injury because Plaintiffs failed to plead how the alleged design defect in the

mattresses caused them to make these replacements or what the bedding replacements cost. 

Plaintiffs have addressed the latter concern in the TAC by alleging the cost of replacement

bedding and the HVAC system. TAC ¶¶ 143-150 (alleging that Plaintiffs’ replacement bedding

ranged from $282.26 to $4,600.00, while the Fullers paid $9,050.42 to replace their HVAC

system). The Court noted that de minimus damage claims in cases of this kind have been

rejected by courts both in California and elsewhere. County of Santa Clara v. Atl. Richfield, 40

Cal. Rptr. 3d 313, 335-36 (Cal. App. Ct. 2006); Theideman v. Mercedes-Benz USA, LLC, 872

A.2d 783, 795 (N.J. 2005); Frank v. Daimler Chrysler Corp., 292 A.D.2d 118, 120, 127 (N.Y.

2002). Plaintiffs’ alleged costs of replacement bedding are not de minimus, and Defendants do

not appear to contend otherwise. 

6

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

However, Plaintiffs still fail to plead a causal link between the mold found in the

mattresses and the need to replacement their bedding and the Fullers’ HVAC system. Not one

named Plaintiff alleges finding mold on his or her bedding, and while the Fullers allege that mold

was found in the HVAC system, they do not allege that the mattress caused this mold or how it

did so. TAC ¶¶ 116, 118, 120, 121, 122, 143, 147, 148, 149 (individual plaintiffs alleging that

their doctor or a mold expert urged them to replace their bedding or that their own research

informed them that mold spores can become airborne, but not claiming that the bedding actually

had become infected with mold or that it could not be cured by being cleaned). Moreover, even

if Plaintiffs had alleged causation sufficiently, it appears, as discussed below, see infra II.B.2, 

that recovery of mold-related damages is prohibited under the Limited Warranty. Accordingly,

the Court again concludes that Plaintiffs have failed to allege damages beyond those covered by

the economic loss rule. 

Third, Defendants contend that the TAC contains no allegations of a cognizable injury

under the UCL. While the UCL does not permit recovery of damages as such, a plaintiff may

obtain injunctive relief and/or restitution. Defendants assert that all Plaintiffs have

acknowledged receiving a refund, excepting the contradictory allegations of Schlesinger and

Karen and Bryan Williams. However, as discussed below, the Williamses’ allegations are not

contradictory. Defendants argue that although the Williamses received a replacement bed, there

is no allegation that this replacement bed developed mold. While the Williamses’ allegations of

mold in the replacement bed are not supported by Karen Williams’ complaint letter, see TAC,

Ex. C, this communication does state explicitly that the replacement bed’s inner parts were

soaking wet. Accordingly, Karen Williams may be entitled to restitution or injunctive relief in

the form of a non-defective replacement mattress. However, the damages alleged by the

remaining Plaintiffs, i.e., having to purchase replacement bedding and incurring shipping and

handling costs, do not appear to be recoverable pursuant to the limited warranty. 

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 Because the MMWA provides a federal remedy for state warranty claims, Monticello v. 7

Winnebago Indus. Inc., 369 F. Supp. 2d 1350, 1356 (N.D. Ga. 2005), but does not expand the

rights available under such warranties, the Court analyzes the state law and MMWA claims

simultaneously. See id.; see also Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th

Cir. 2008) (“disposition of the state law warranty claims determines the disposition of the

Magnusson-Moss Act claims.”); Daugherty v. Am. Honda Motor Co., Inc., 144 Cal. App. 4th

824, 833 (2006) (“the trial court correctly concluded that failure to state a warranty claim under

state law necessarily constituted a failure to state a claim under Magnusson-Moss.”) 

 Timely notice of breach is not required where the buyers did not purchase the product 8

from the manufacturer directly. See Sanders v. Apple Inc., 672 F.Supp.2d 978, 989 (N.D. Cal.

2009), citing Greenman v. Yuba Power Prods., 59 Cal.2d 57, 61 (1963). The TAC alleges that

16

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

2. Warranty Claims7

Plaintiffs’ breach of express warranty and MMWA claims are brought on behalf of a

purported class represented by each of the named plaintiffs. An explicit promise by the seller

with respect to the quality of goods that is part of the bargain between the parties creates an

express warranty “that the goods shall conform to the affirmation or promise.” UCC § 2-313. 

To plead a claim for breach of express warranty, the buyer must allege that the seller “(1) made

an affirmation of fact or promise or provided a description of its goods; (2) the promise or

description formed part of the basis of the bargain; (3) the express warranty was breached; and

(4) the breach caused injury to the plaintiff.” Blennis v. Hewlett-Packard Co., No. C 07-00333,

2008 WL 818526, at *2 (N.D. Cal. Mar. 25, 2008) (citation omitted). Such a claim must

describe the exact terms of the warranty, allege that the buyer reasonably relied on those terms,

and that the breach of the warranty was the proximate cause of the buyer’s injury. See id. A

buyer also must plead that notice of the alleged breach was provided to the seller within a

reasonable time after discovery of the breach. UCC § 2-607(3)(a); see also Pollard v. Saxe &

Yolles Dev. Co., 12 Cal.3d 374, 380 (1974) (“The requirement of notice of breach is...designed

to allow the defendant opportunity for repairing the defective item, reducing damages, avoiding

defective products in the future, and negotiating settlements.”). The buyer has the burden of

showing that reasonable notice was provided. Cardinal Health 301, Inc. v. Tyco Elecs. Corp.,

169 Cal. App. 4th 116, 135 (2008). 

8

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three of the named Plaintiffs purchased their Sleep Number® beds directly from Select Comfort. 

TAC ¶¶ 18-20. The remaining named Plaintiffs purchased their beds through Sleep Train and

BBB, both retailers. Id. ¶ 21. 

 Defendants do not attack the sufficiency of the pre-suit notice or contend that a three- 9

day period was inadequate time for them to respond appropriately. 

17

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

a. Pre-Suit Notice

A buyer must plead that notice of the alleged breach was provided to the seller within a

reasonable time after discovery of the breach. UCC § 2-607(3)(a); see Pollard, 12 Cal.3d at 380. 

Defendants contend that Plaintiffs’ express warranty and MMWA claims must be dismissed

because they failed to provide notice either of the original defect or that the attempted repair,

replacement or refund was inadequate. 

Defendants contend that Stearns alleges no new facts demonstrating that she provided

pre-suit notice of her warranty claim. However, Stearns does allege that she contacted Select

Comfort on April 22, 2008 to complain about mold in her bed. TAC ¶¶ 63, 64 (alleging that the

Customer Service Representative told her that she would be receiving a refund and despite her

refusal Stearns received a refund check for $1,894.35). Stearns filed the instant action in state

court three days after placing this call to Select Comfort’s customer service. Accordingly, the

Court concludes that Stearns has alleged adequate pre-suit notice.9

Defendants next argue that Plaintiffs fail to plead that the Williamses provided proper

pre-suit notice of the mold in their replacement bed. Karen Williams first notified Defendants of

the mold in her son’s bed in 2006, and she did so again on May 14, 2007. Id. ¶¶ 57, 58. Select

Comfort sent a new bed to Bryan Williams. Plaintiffs allege that this new bed then developed

mold. Id. ¶ 57. The TAC does not allege when the Williamses called or contacted Defendants

regarding the mold that developed in the replacement bed. Exhibit C to the TAC is a letter that

Karen Williams sent to Select Comfort representative Lisa Riedesel on May 14, 2007. TAC, Ex.

C. While the letter details the discovery of mold in Bryan Williams’ first bed and the health

problems Bryan Williams allegedly suffered, it does not assert that the replacement bed itself

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

developed mold. Rather, it asserts that when the new replacement bed arrived, the Williamses

“unzipped the bed to open it up and show the interior makings of the bed and to [their] worst

fear, the new bed pieces were completely soaking wet!!! Immediately [they] were instructed to

get the bed out of the house again storing it in plastic. So goes the story...it certainly appeared

that the moisture problem that started the whole mold growing in the first place had again started

the process on the NEW BED!!” Id. at 3-4. While Plaintiffs now plead clearly that Karen

Williams contacted Defendants about problems with the replacement bed prior to filing the

instant action, the notice itself mentions moisture, not mold. That said, it appears that the Karen

Williams provided sufficient notice “to let the seller know that the transaction [was] still

troublesome and must be watched” even if the word mold was not used specifically. See UCC §

2-607 Official Comment 4.

While the parties dispute whether Defendants responded adequately to such notice,

Defendants do not argue that the remaining named Plaintiffs do not plead pre-suit notice

adequately. However, Defendants do contend that Plaintiffs have not pled adequate notice to

Select Comfort that they were acting on behalf of a plaintiff class prior to filing suit. The

MMWA provides that no private action may be brought unless the defendant first is afforded a

reasonable opportunity to cure its failure to comply, and in the case of a purported class action,

“such reasonable opportunity will be afforded by the named plaintiffs and they shall at that time

notify the defendant they are acting on behalf of the class.” 15 U.S.C. § 2310(e). 

Plaintiffs contend that Karen Williams’s letter served as proper pre-suit notice on behalf

of the class. The letter addresses in detail the mold found in Bryan Williams’ mattress, describes

the health problems that he and his girlfriend suffered that purportedly stemmed from the mold,

expresses outrage at the moisture found in the replacement bed provided by Defendants, and

finally requests that Select Comfort reimburse Williams for expenses totaling $32,000. TAC,

Ex. C. However, nothing in the letter states or even implies that Williams is acting on behalf of a

purported plaintiff class. Id. (inquiring how “without a recall notice. . .WE the consumers [are]

supposed to know” of the mold problems, but never indicating that she was acting on behalf of a

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

class and specifically requesting reimbursement totaling $32,000 based upon her personal

expenses including medical bills). The Court agrees with Defendants that Plaintiffs’ allegations

of pre-suit notice on behalf of the purported class are inadequate. 

b. Select Comfort’s Limited Warranty 

1. Breach

“A manufacturer’s liability for breach of an express warranty derives from, and is

measured by, the terms of that warranty.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 525,

112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The express warranty at issue here provided that Sleep

Number® beds would be “free from defects in materials and workmanship for a period of 20

years from the original purchase date” and that the “warranty is limited to product repair or

replacement only.” FAC, Ex. G. In its order dated June 5, 2009, the Court held that because

Defendants offered repair or replacement goods, and when that remedy proved unsatisfactory

provided full refunds to all named Plaintiffs, the buyer was provided with the “substantial value

of the bargain” and thus suffered no cognizable injury. Order at 8-10; See UCC § 2-719 Official

Comment 1; see also Marr Enters., Inc. v. Lewis Refrigeration Co., 556 F.2d 951, 955 (9th Cir.

1977) (“If the seller did not replace the defective parts, the purchaser was entitled to refund of the

purchase price...mere failure to replace or repair would not cause the court to read in the general

remedy provisions of the UCC [due to failure of essential purpose]”). Moreover, the Court

previously has concluded that when the named Plaintiffs accepted the refund, they essentially

modified the terms of the express warranty and the remedies available for breach. See UCC § 2-

719 Official Comment 1 (“parties are left free to shape their remedies to their particular

requirements and reasonable agreements limiting or modifying remedies are to be given effect.”) 

In its order dated December 4, 2009, the Court noted that Plaintiffs Schlesinger and

Karen Williams had alleged for the first time in the SAC that their request for a refund was

refused. Dkt. No. 70 at 13-14. While the FAC was silent as to whether Karen Williams received

a refund, it stated explicitly that Schlesinger in fact did receive a refund from Select Comfort

when he complained about mold. Plaintiffs offered no explanation for this directly contradictory

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

statement of material fact as to Schlesinger or newly-alleged fact as to Karen Williams. In the

TAC, Schlesinger and Karen Williams again allege that their request for a refund was refused

and again fail to provide any explanation for the contradiction in their prior pleadings. TAC ¶ 60

(alleging that Karen Williams “requested in writing a refund and reimbursement for all expenses

related to the moldy bed, an amount which equaled approximately $32,000.00” and that this was

rejected); id. ¶ 62 (stating that “Schlesinger requested a refund and reimbursement for all

expenses and property damage he sustained related to the moldy bed” and that the “demand went

unanswered”). 

In light of these contradictions, Defendants contend that the Court need not accept these

allegations as true. MTS&D at 6, citing See Azadpoour v. Sun Microsys., Inc., No. 06-3272,

2007 WL 2141079, at *2 n. 2 (N.D. Cal. July 23, 2007) (“Where allegations in an amended

complaint contradict those in a prior complaint, a district court need not accept the new alleged

facts as true, and may, in fact, strike the changed allegations as “false and sham.”), citing Hon.

William W. Schwarzer, et al., Federal Civil Procedure Before Trial, § 9:223.5 (2006), citing

Bradley v. Chiron Corp., 136 F.3d 1317, 1324 (9th Cir. 1998) (A trial judge has the authority to

strike pleadings that are “false and sham”); Ellingson v. Burlington Northern, Inc., 653 F.2d

1327, 1329-30 (9th Cir. 1981) (Based on FRCP Rule 11); see also Jones v. Bayer Healthcare

LLC, No. 08-2219 SC, 2009 WL 1186891, at *3 (N.D. Cal. May 4, 2009) (striking plaintiff’s

amended pleading because it was factually inconsistent with plaintiff’s previous complaint); see

also Stonebrae, L.P. v. Toll Bros., Inc., NO. C-08-0221 EMC, 2010 WL 114010, at *8 (N.D. Cal.

Jan. 7, 2010) (holding that where allegations in an amended complaint contradict those in a prior

complaint the district court need not accept the new alleged facts as true, but that when a party

explains the error in a subsequent pleading or by amendment, the trial court must accord the

explanation due weight), citing Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859-60 (9th Cir. 1995);

seek also Jones v. Bayer Healthcare LLC, No. 08-2219 SC, 2009 WL 1186891, at *3 (N.D. Cal.

May 4, 2009).

 In both cases, Select Comfort’s failure to provide a refund or repair the mold found in

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 Defendants assert that they do not address Schlesinger’s breach of warranty claim in

10

their motion to dismiss because the Court previously found that it was barred by the statute of

limitations. Cal. Com. Code § 2725 (setting a four-year limitations period for warranty claims);

SAC ¶ 53 (alleging that Schlesinger discovered the mold in his bed in 2003, well outside the

four-year limitations period). However, in the TAC, Schlesinger alleges that he found mold

again on August 11, 2008. If Plaintiffs were able to explain their contradictory pleadings, a

claim premised upon the date of rediscovery would not fall outside of the four year statute of

limitations. 

Finally, Stearns alleges for the first time that the refund she received ($1,894.25) did not

compensate her for “the entire bed purchase price, the property damages she sustained or for

costs associated with replacing the defective bed.” TAC ¶64. Stearns does not distinguish

between the bed purchase price and other costs (e.g., replacement bedding and shipping and

handling costs) sufficiently to put Defendants on notice or make clear to the Court whether the

sum of $1,894.25 compensated her fully for the original purchase price of the bed. 

21

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

the customers’ beds would constitute a potential breach of the warranty if proper notice and an

opportunity to cure were provided. Because Karen Williams’ allegation that she did not receive a

refund for her defective replacement bed (or a second non-defective replacement) does not

contradict a previous pleading, the Court will accept it as true. However, the Court will not

accept Schlesinger’s allegation that he did not receive a refund given Plaintiffs’ past

contradictory pleadings and repeated failure to provide an explanation despite the Court’s

express concern in its prior order. Dkt. No. 70 at 13 (“Plaintiffs offer no explanation for this

directly contradictory statement of a material fact as to Schlesinger or newly-alleged fact as to

Williams”).10

2. Special or Consequential Damages

The express warranty excludes recovery for “special or consequential damages.” FAC,

Ex. G. The enforceability of such an exclusion is addressed in the California Commercial Code,

which provides in pertinent part that: 

Consequential damages may be limited or excluded unless the limitation

or exclusion is unconscionable. Limitation of consequential damages for injury to

the person in the case of consumer goods is invalid unless it is proved that the

limitation is not unconscionable. Limitation of consequential damages where the

loss is commercial is valid unless it is proved that the limitation is

unconscionable.

Cal. Com. Code § 2719(3). 

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 As discussed above, see supra II.B.1, Plaintiffs also fail to allege the causal connection 11

between the alleged mold within the mattress and the need to replace their bedding and the

Fullers’ HVAC system. 

22

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

In its last order, the Court concluded that the limited warranty is not procedurally or

substantively unconscionable. Dkt. No. 70 at 14-16 (holding that providing a refund, even

though it is not mentioned as a remedy within the limited warranty, is consistent with California

public policy as expressed in the Song-Beverly Consumer Warranty Act), citing See Cal.

Com.Code § 1793.2(d)(1) (“[I]f the manufacturer or its representative in this state does not

service or repair the goods to conform to the applicable express warranties after a reasonable

number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an

amount equal to the purchase price paid by the buyer, less that amount directly attributable to sue

by the buyer prior to the discovery of the nonconformity”). Plaintiffs do not reassert their

previous unconscionability argument in their opposition to the instant motion. 

11

Instead, Plaintiffs now argue that because the parties modified the terms of the warranty

by substituting refunds for repair or replacement parts, Plaintiffs should be able to modify the

terms of the warranty to include recovery of consequential and incidental damages. However, a

modification to a warranty or contract requires proof of mutual assent. See Comerica Bank v.

Whitehall Specialties, Inc., 352 F.Supp.2d 1077, 1081 (C.D. Cal. 2004), citing PMC, Inc. v.

Porthole Yachts, Ltd., 65 Cal.App.4th 882, 887, 76 Cal.Rptr.2d 832, 834 (1998). (“[a] valid

modification...requires proof of...mutual assent.”) Defendants do not assent to modifying the

limited warranty to provide Plaintiffs with a right to incidental or consequential damages.

Finally, Plaintiffs argue that Defendants made a misrepresentation in offering the

warranty and that in turn Plaintiffs now can “back[] out of the deal.” Opp. Mot. 17-18, citing

Western Filter Corp. v. Argan, Inc., 540 F.3d 947, 952 (2008) (“If, prior to closing, either the

seller or buyer discovers that a representation or warranty made by the other party is not true,

they have grounds for backing out of the deal.”) This argument is perplexing. Plaintiffs appear

to assert that they can “back out” of the warranty while at the same time alleging that they are

entitled to damages for breach. For this reason, and because Plaintiffs do not explain how

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 Plaintiffs attempt to state a claim under California Civil Code § 1793.2(a) in their 12

opposition papers. However, Plaintiffs do not allege a claim for relief under § 1793.2 within the

TAC, and they have not sought leave of Court to allege a new claim. 

 Even if the Fullers’ had a valid negligence claim for property damage notwithstanding 13

the economic loss rule, Defendants argue that this Court has no interest in a dispute between the

Fullers, who are residents of Florida, and Select Comfort Retail Corporation, a Minnesota

corporation. 28 U.S.C. § 1391(a). The Fullers’ claims with respect to their HVAC system also

are unique and inappropriate for class treatment.

23

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Defendants misrepresented the warranty, the Court concludes that the warranty limits Plaintiffs’

entitlement to consequential and incidental damages.12

3. Negligence and Strict Products Liability

“In order to establish negligence under California law, a plaintiff must establish four

required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 349

F.3d 1191, 1203 (9th Cir. 2003) (citation omitted). To prevail on a strict products liability claim,

a plaintiff must show that a “manufacturer is or should have been aware that a product is

unreasonably dangerous absent a warning and such warning is feasible, the manufacturer will be

held strictly liable if it fails to give an appropriate and conspicuous warning.” Maneely v.

General Motors Corp., 108 F.3d 1176, 1179 (9th Cir. 1997), citing Burke v. Almaden Vineyards,

Inc., 86 Cal.App.3d 768, 772, 150 Cal.Rptr. 419 (1978). “[R]ecovery under the doctrine of strict

liability is limited solely to ‘physical harm to person or property.” Jimenez v. Super. Ct., 29

Cal.4th 473, 482 (Cal. 2002), quoting Seely v. White Motor Co., 63 Cal.2d 9, 18 (1965).

a. Economic Loss Doctrine

As discussed above, Plaintiffs’ allegations of loss and causation are insufficient. See

supra II.B.1 (concluding that the Fullers fail to plead how the alleged mold in their mattresses 13

caused the development of mold in their HVAC system and that the remaining Plaintiffs failed to

plead that their former bedding had mold on it or why mold contained within their mattresses

forced Plaintiffs to replace their bedding). Moreover, incidental and consequential damages are

precluded under the terms of the Limited Warranty and, as discussed above, see supra II.B.2.b.2,

Plaintiffs do not argue in their opposition papers that this limitation is unconscionable. 

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

b. Unreasonably dangerous product

Plaintiffs claim that the mold-inducing defect renders the mattresses an unreasonably

dangerous product. They contend that the bed is designed to incubate mold – a condition which

normally does not occur in beds used in their customary manner – and that the mold creates

extreme danger to Plaintiffs and others similarly situated. Opp. at 16, citing TAC ¶¶ 77, 108,

135, 216, 219, 224, 231. Plaintiffs argue that this problem “is magnified by the fact that a simple

straight forward instruction on notice would allow a customer/user to look inside the bed and see

if mold actually exists.” Opp. at 16. However, Plaintiffs’ factual allegations relate almost

entirely to Select Comfort’s 2005 reformulation of a new mold-inhibiting agent and the fact that

Select Comfort has not notified customers of the alleged defect. Plaintiffs’ remaining allegations

state in a conclusory fashion that the mattress was a “defective, contaminated, and dangerous

product, and unsafe for the use and purpose for which it was intended when used and applied as

recommended by defendants.” TAC ¶ 108. Such allegations do not meet the pleading standard

of Fed. R. Civ. P. 8 and need not be accepted as true. Clegg, 18 F.3d at 754-755.

c. Design Defect 

Plaintiffs allege for the first time that the mold in their mattresses was caused by a design

defect and that the Limited Warranty does not extend to design defects. Based on these

allegations, Plaintiffs argue that they can avoid the limitations of the warranty, including its bar

on recovery for incidental and consequential damages. The Limited Warranty states:

Select Comfort Corporation (“Select Comfort”) warrants to the original purchaser

that their Select Comfort sleep system (mattress and/or foundation) will be free

from defects in material and workmanship for a period of twenty years from the

original purchase date.

FAC Ex. A (Limited Warranty) at 18 of 56. (emphasis added). 

“When interpreting a contract, the plain language within the four corners of the contract

must first be examined to determine the mutual intent of the contracting parties. United States v.

Wetlands Water Dist., 134 F.Supp.2d 1111, 1134 (E.D. Cal. 2001). “A written contract must be

read as a whole and every part interpreted with reference to the whole, with preference given to

reasonable interpretations.” Id. at 1135, quoting Klamath Water Users Protective Ass'n v.

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), cert. denied, 531 U.S. 812, 121 S.Ct. 44, 148

L.Ed.2d 14 (2000) (citation omitted). Plaintiffs argue that the Limited Warranty’s coverage of

“defects in material and workmanship” does not extend to defects in design. However, despite

their conclusory assertion as to the meaning of the contract, Plaintiffs do not cite legal authority

for their proposed construction.

Defendants argue persuasively that the term “workmanship” is broad and includes the

quality and skill that is part of the design process for the bed. Reply at 8, citing Koulajain v. Trek

Bicycle Corp., No. 90-Civ-3156(LJF), 1992 WL 28884, at *2 (S.D.N.Y. Feb. 11, 1992) (holding

that “the warranty's reference to ‘workmanship’ could refer to bicycle designs as well as to

implementation of those designs in the manufacturing process.”); see also In re Saturn L-Series

Timing Chain Prods. Liab. Litig., MDL No. 1920, 2008 WL 4866604, at *14 (D. Neb. Nov. 7,

2008) (internal citations omitted) (concluding that “a defect related to materials and

workmanship and a design defect are substantially the same in the context of [the] action” and

reasoning that it would be “absurd to interpret [defendant’s] written warranty as not covering any

defect in materials and workmanship if the defect could simultaneously be attributable to a

design implemented by the company”). 

The Ninth Circuit has considered the meaning of “workmanship” in the context of

exclusions in insurance contracts and has concluded that “workmanship” includes defects in

design. Tzung v. State Farm Fire & Cas. Co., 873 F.2d 1338, 1341 (9th Cir. 1989) (“We believe

instead that an unstrained interpretation of the exclusion for ‘faulty workmanship’ includes losses

caused by defects in the design and construction of the building.”) Other courts have reached the

opposite conclusion. See Lombard Corporation v. Quality Aluminum Products Co., 261 F.2d

336, 338-39 (6th Cir. 1958) (distinguishing between a design defect and a defect in material or

workmanship), see also Brothers v. Hewlett-Packard Co., No. C-06-02254 RMW, 2007 WL

485979, at *4 (N.D. Cal. Feb. 12, 2007) (“[T]he Limited Warranty does not guarantee against

design defects, it guarantees against defects in materials and workmanship. . .Unlike defects in

materials or workmanship, a design defect is manufactured in accordance with the product's

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 This reasoning would not apply to Karen Williams, who alleges that she never received 14

a refund for her defective replacement. Should Schlesinger explain his prior contradictory

allegations with respect to his receipt of a refund he too might have a viable claim.

 Schlesinger alleges that he first discovered mold in his mattress in 2003, but that he 15

discovered mold in his replacement parts in August 2008. 

26

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

intended specifications.”). 

However, the Court need not construe the terms of the Limited Warranty at all. As

discussed previously, the named Plaintiffs invoked their rights under the warranty, and

Defendants provided refunds and/or replacements for the moldy mattresses. UCC § 2-719

Official Comment 1. Even if the Court were to ignore Ninth Circuit authority and conclude that

the alleged design defect was not covered by the “materials and workmanship” language, these

terms necessarily would include the alleged design defect at the point that Plaintiffs’ recovered

under the limited warranty.14

4. UCL

The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair,

deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Accordingly,

“[a]n act can be alleged to violate any or all of the three prongs of the UCL—unlawful, unfair, or

fraudulent.” Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1554 (2007). 

a. Statute of Limitations

Defendants contend that Plaintiffs’ UCL claim is barred by the statute of limitations. A

claim for relief brought pursuant to the UCL must be “commenced within four years after the

cause of action accrued.” Cal. Bus. & Prof. Code § 17208; see also Harshbarger v. Phillip

Morris, Inc., No. 02-05267 JSW, 2003 WL 23342396, at *5 (N.D. Cal. April 1, 2003). In its last

order, the Court did not determine whether or not the discovery rule applied to Plaintiffs’ UCL

claims because Plaintiffs failed to allege when any of the individual plaintiffs actually discovered

the mold in their Sleep Number® bed. According to the TAC, all of the named Plaintiffs

purchased their Sleep Number® bed more than four years prior to the filing of the instant

action. 

15

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Courts have reached different conclusions as to when a UCL claim accrues. Compare

Rambus Inc. v. Samsung Elecs. Co., Nos. C-05-02298 & C-05-00334, 2007 WL 39374, at *3

(N.D. Cal. Jan. 4, 2007) (“[plaintiff] cannot rely upon the discovery rule for its Section 17200

claim”); Snapp & Assocs. Ins. Servs., Inc. v. Malcolm Bruce Burlingame Robertson, 96 Cal. App.

4th 884, 891 (2002) (“The ‘discovery rule,’ which delays accrual of certain causes of action until

the plaintiff has actual or constructive knowledge of facts giving rise to the claim, does not apply

to unfair competition actions. Thus, ‘the statute begins to run...irrespective of whether plaintiff

knew of its accrual, unless plaintiff can successfully invoke the equitable tolling doctrine.”’)

(citation omitted), with Mass. Mut. Life Ins. Co. v. Superior Court, 97 Cal. App. 4th 1282, 1295

(2002) (statute of limitations for a UCL claim “will probably run from the time a reasonable

person would have discovered the basis for a claim”). 

In Karl Storz Endoscopy-Am., Inc. v. Surgical Tech., Inc.., 285 F.3d 848, 857 (9th Cir.

2002), the Ninth Circuit held that claims under California Business and Professions Code §

17200 et seq. are subject to a four-year statute of limitations which begins to run on the date the

cause of action accrued, not on the date of discovery. However, in Betz v. Trainer Wortham &

Co., 236 Fed. Appx. 253, 256 (9th Cir. May 11, 2007), another Ninth Circuit panel observed that

it remains “an open question under California law whether the discovery rule applies to unfair

business practices claims.” Subsequently, in Broberg v. Guardian Life Ins. Co. of Am., 171

Cal.App.4th 912, 920-21, 90 Cal.Rptr.3d 225, review denied (2009), the California Court of

Appeal made clear that the discovery rule applies to unfair business practice claims “based on the

defendant's allegedly deceptive marketing materials and sales practices, which is simply a

different legal theory for challenging fraudulent conduct and where the harm from the unfair

conduct will not reasonably be discovered until a future date.” However, the UCL unfair

competition claim alleged here is distinguishable from that in Broberg, as Plaintiffs do not allege

a UCL claim sounding in fraud or misrepresentation. In fact, on October 30, 2008, the Court

dismissed Plaintiffs’ previously alleged claims for concealment, intentional misrepresentation,

and false advertising without leave to amend. Because Plaintiffs again fail to allege adequate

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

facts in support of their UCL claim, the Court need not decide whether the discovery rule tolls

the statute of limitations. 

b. “Unlawful” Business Practices

For an action based upon an allegedly unlawful business practice, the UCL “borrows

violations of other laws and treats them as unlawful practices that the unfair competition law

makes independently actionable.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel.

Co., 20 Cal. 4th 163, 180 (1999); see also Farmers Ins. Exchange v. Superior Court, 2 Cal. 4th

377, 383 (1992). However, allegations in support of such a claim “must state with reasonable

particularity the facts supporting the statutory elements” of the alleged violation. Silicon

Knights, Inc. v. Crystal Dynamics, Inc., 983 F. Supp. 1303, 1316 (N.D. Cal. 1997), quoting

Khoury v. Maly’s of Cal., Inc., 14 Cal. App. 4th 612, 619 (1993). Plaintiffs’ negligence and

product liability claims may not constitute predicate acts for a UCL claim. See Hartless v.

Clorox Co., No. 06-CV-2705, 2007 WL 3245260, at *5 (S.D. Cal. Nov. 2, 2007) (common-law

claims cannot form the basis for a UCL claim). Accordingly, only Plaintiffs’ warranty claims

could serve as a predicate for the “unlawful” prong. For the reasons discussed above, it appears

that the only plaintiff who has alleged a warranty claim adequately is Karen Williams, who

alleges both that she provided pre-suit notice of the moisture found in her replacement bed and

that she never received a refund or second replacement. See supra II.B.2.

c. “Unfair” Business Practices

Plaintiffs also allege a “standalone” UCL claim, see TAC ¶¶ 215-239, accusing

Defendants of unfair business practices. “[A] practice may be deemed unfair even if not

specifically proscribed by some other law.” Cel-Tech, 20 Cal.4th at 180. However, Plaintiffs

again fail to satisfy the first element of an unfair business practices claim under Camacho v.

Automobile Club of Southern California, 142 Cal.App.4th 1394 (2006). See Kilgore v. Keybank,

— F.Supp.2d —, No. C08-2958 TEH, 2010 WL 1461577, at * 8 (N.D. Cal. Apr. 12. 2010)

(concluding that the Camacho unfairness standard applies within the context of a consumer

unfair business practice action), citing Davis v. Ford Motor Credit Co., 179 Cal.App.4th 581,

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 As discussed above, see supra II.B.2b.1, Schlesinger’s allegation that he did not 16

receive a refund upon request is inconsistent with his allegations in the FAC, and he fails to

explain this contradiction despite the Court’s explicit request for such an explanation in its order

granting Defendants’ motion to dismiss the SAC. 

29

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

596-98, 101 Cal.Rptr.3d 697 (Cal.App.2d Dist.2009). In Camacho, the court stated that a viable

claim for relief may exist if the following conditions are met: “1) the consumer injury must be

substantial; (2) the injury must not be outweighed by any countervailing benefits to consumers or

competition; and (3) it must be an injury that consumers themselves could not reasonably have

avoided.” Camacho, 142 Cal.App.4th at 1403. 

Plaintiffs allege that the substantial consumer injury here consists of the monetary

expense of replacing their bedding and, in the case of the Fullers, their HVAC system. TAC ¶

226 (referring back to allegations laying out each named plaintiff’s expense for replacing bedding

and the Fullers’ HVAC system). While these costs are not de minimus, they are consequential

and thus are barred under the Limited Warranty. See supra II.B.2.b. Accordingly, they cannot be

the basis for Plaintiffs’ substantial consumer injury in connection with their UCL claim. 

d. Available Remedies

A UCL action is equitable in nature, and damages cannot be recovered. Korea Supply

Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003). “[A] plaintiff may obtain

restitution and/or injunctive relief against unfair or unlawful practices in order to protect the

public and restore to the parties in interest money or property taken by means of unfair

competition.” State v. Altus Fin., S.A., 36 Cal. 4th 1284, 1303 (2005), quoting Kraus v. Trinity

Management Services, Inc. 23 Cal.4th 116, 126, 96 Cal.Rptr.2d 485, 999 P.2d 718 (2000); see

Bus. & Prof.Code, § 17204. However, “[a]s amended pursuant to the 2004 voter approval of

Proposition 64, the UCL in § 17204 now requires a plaintiff to establish that it has ‘suffered

injury in fact and has lost money or property.’” Walker v. Geico General Ins. Co., 558 F.3d

1025, 1027 (9th Cir. 2009), quoting Californians for Disability Rights v. Mervyn's, LLC, 39

Cal.4th 223, 46 Cal.Rptr.3d 57, 138 P.3d 207, 209-10 (2006). As discussed above, almost all of

the named Plaintiffs concede that they have received a refund for their moldy mattresses. Karen 16

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 The Court also notes that, “[a]s the Ninth Circuit has explained, ‘system-wide 17

injunctive relief is not available based on alleged injuries to unnamed members of a proposed

class.... Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not

represent a class seeking that relief.’” Stickrath, 527 F.Supp.2d 992, 997 (N.D. Cal. 2007),

quoting Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir.1999). Because the named

Plaintiffs lack standing to seek injunctive relief, so too does their purported plaintiff class. 

30

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Williams does plead that she did not receive a refund or an adequate replacement when the

interior of her second mattress became soaking wet. Accordingly, because the other injury-infact or restitution requested (replacement bedding and shipping and handling costs) is barred by

the Limited Warranty’s prohibition on incidental and consequential damages and Plaintiffs do

not plead causation adequately, Karen Williams is the only named plaintiff who could seek

restitution or injunctive relief pursuant to the UCL. 

However, notwithstanding Karen Williams’ ability to plead injury-in-fact, it appears that

all of the named Plaintiffs lack standing to pursue injunctive relief. In order to obtain prospective

injunctive relief, a plaintiff must establish that there is a “likelihood of future injury.” White v.

Lee, 227 F.3d 1214, 1242 (9 Cir. 2000). “Past exposure to illegal conduct does not in itself th

show a present case or controversy regarding injunctive relief if unaccompanied by any

continuing, present adverse effects.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992). 

As Defendants point out, “Plaintiffs do not allege that they still use their beds, that they will use

their beds in the future, or that they will purchase another Select Comfort bed at any time.” See

also Stickrath v. Globalstar, Inc., 527 F.Supp.2d 992 (N.D. Cal. 2007), quoting Hodgers-Durgin

v. de la Vina, 199 F.3d 1037, 1045 (9th Cir.1999).17

5. Class claims

In order for a class to be certified, the class must be ascertainable. Bishop v. Saab Auto.

A.B., No. CV 95-0721 JGD (JRX), 1996 WL 33150020, at *4 (C.D.Cal. Feb.16, 1996), citing

Debremaecker v. Short, 433 F.2d 733 (5th Cir.1970). A plaintiff seeking to bring a class action

has the burden of showing that: (1) the class is so numerous that joinder of all members is

impracticable; (2) there are questions of law or fact common to the class; (3) the claims or

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 “Class actions, we believe, must be structured so as to conform in the essential respects 18

to the judicial process. This is the principle by which we are guided. It dictates, inter alia, that the

courts not be available to those who have suffered no harm at the hands of them against whom

they complain. They have no standing to sue. It is necessary, therefore, to examine the standing

of the plaintiffs to initiate the class action before us.” La Mar v. H & B Novelty & Loan Co., 489

F.2d 461, 464 (9th Cir.1973).

31

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

defenses of the representative parties are typical of the claims or defenses of the class; and (4) the

representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P.

23(a); see Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1176 (9th Cir. 2007). If the plaintiff

demonstrates that these four requirements have been satisfied, then he or she also must show

“that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); see also Wiener v.

Dannon Co., Inc., 255 F.R.D. 658, 668 (C.D. Cal. 2009). 

1. Ascertainability

The TAC defines the proposed plaintiff class as follows, “[a]ll persons located within

California or Florida who used and/or purchased the Sleep Number Bed® by Select Comfort

from January 1, 1987 through the present and whose beds contain mold.” TAC ¶ 88. Defendants

argue that because the class does not exclude persons who already have received refunds or

replacement parts or who have not suffered any damages at all, it is not ascertainable. The Court

agrees. Defendants point out that “all persons who have merely ‘used’ a Sleep Number bed in

the past twenty-three years, regardless of frequency of use” would be members of the class. 

MTS&D at 21. This could include hotel guests who spent a single night on a Sleep Number

Bed®. “Such members have no injury and no standing to sue.” Hovsepian v. Apple, Inc., No.

08-5788 JF (PVT), 2009 WL 5069144, at *6 (N.D. Cal. 2009); see also Bishop, 1996 WL

33150020, at *5 (“courts have refused to certify class actions based on similar ‘tendency to fail’

theories because the purported class includes members who have suffered no injury and therefore

lack standing to sue.”).18

2. Predominance of individual issues

Defendants also contend that in the instant case individual issues will predominate and

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

the action will become unmanageable. They point to the differing claims of property damage

even among named plaintiffs, including the Fullers’ unique claim that they had to replace their

HVAC system. They suggest that such claims inevitably will raise issues of causation that are

individualized and do not lend themselves well to class treatment. In addition, as the Court has

concluded above, recovery for the alleged damage to bedding and related shipping and handling

costs appears to be precluded by the Limited Warranty’s bar on consequential damages. 

Defendants also assert correctly that substantial statute of limitations issues are likely to

complicate the class claims. The proposed class encompasses individuals who purchased their

mattresses as long as twenty years ago, with no limitation as to when such individuals may have

discovered mold in their Sleep Number® beds. Even if such a limitation were incorporated in

accordance with California’s delayed discovery rule, there still would have to be an

individualized inquiry as to each class member’s individual circumstances. Plaintiffs do not

respond to this concern in their opposition papers. 

Finally, Defendants argue that Plaintiffs’ express warranty claims are inappropriate for

class treatment. The Court agrees. The express warranty claims involve elements that are

individual to each purported class member, such as the provision of notice, an opportunity to

cure, and reliance. Tietsworth v. Sears, No. 5:09-CV-00288 JF (HRL), 2010 WL 1268093, at *20

(N.D. Cal. Mar. 31, 2010) (citation omitted); see also Cole v. Gen. Motors., 484 F.3d 717, 724-

30 (5th Cir. 2007) (explaining why certain warranty claims are inappropriate for class treatment). 

The TAC represents Plaintiffs’ fourth attempt to plead sufficient class allegations. Each of

Defendants’ arguments was raised on their last motion to strike, and the Court granted that

motion. Plaintiffs have not altered their class definition in response to the Court’s previously

expressed concerns, nor have they attempted to address the majority of Defendants’ arguments in

support of the instant motion to strike. Accordingly, because further attempts to amend classwide allegations appear to be futile, the motion to strike class allegations will be granted without

leave to amend.

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

III. MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT 

A. Background 

Plaintiffs seek leave to file their proposed fourth amended complaint (“PFAC”). In the

PFAC, Plaintiffs plead individual and class claims for negligence, strict liability, and violations

of the UCL based on personal injury. Plaintiffs also substantially re-plead the allegations of the

TAC. In her original complaint, Stearns alleged individual and class claims for strict product

liability, breach of express and implied warranties, fraud, and negligent misrepresentation,

including claims for relief based upon alleged personal injury. On October 1, 2008, the Court

dismissed that complaint, struck the class claims, provided guidance on how to plead the alleged

claims adequately, and encouraged Stearns to narrow the proposed class. Dkt. No. 28 at 5-6, 8,

13. 

Plaintiffs did not re-allege their personal injury claims in the FAC, but they did continue

to assert a nationwide class, added five named plaintiffs and one Defendant (Sleep Train), and

alleged seventeen claims for relief. On June 5, 2009, the Court granted Defendants’ motion to

dismiss the FAC and granted limited leave to amend, specifically instructing Plaintiffs that they

must seek leave of Court to add any new claims. Then, on July 6, 2009, Plaintiffs filed their

SAC, which re-introduced personal injury claims. Because Plaintiffs failed to seek leave of

Court to expand the scope of the FAC, the Court granted Defendants’ motion to strike the

personal injury claims. On January 4, 2010, Plaintiffs filed the operative TAC. On March 12,

2010, the same day that Defendants filed the instant motion to dismiss, Plaintiffs filed their

motion for leave to file the PFAC. 

Plaintiffs allege that Stearns, Bryan Williams, Dennis Fuller, Bonnie Fuller, Ruth Rose,

and Dan Schlesinger “suffered injuries and received treatment as a result of defendants [sic]

product. . .” PFAC ¶ 134. They also claim that “[t]he full nature and extent of said injuries are

not known to plaintiffs and [] request[] [leave] to amend this complaint to conform to proof at

time of trial.” Id. The allegations of personal injury in the PFAC include the following: 

(a) Molly Stearns suffered various injuries, including but not limited to, lung and

pulmonary distress, lung biopsy and other lung related treatment.

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 Plaintiffs submit objections to fourteen statements made by Defendants in their 19

opposition papers to the instant motion for leave to file the PFAC. Because it does not rely upon

any of these statements in reaching its disposition of the motion, the Court need not determine

the merits of the objections. However, the Court will note that the concerned statements appear

to be legal arguments or characterizations of Plaintiffs’ allegations based upon Defendants’ legal

positions. 

34

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

(b) Bryan Williams suffered various injuries, including but not limited to lung and

pulmonary distress, lung biopsy and other lung related treatment.

(c) Dennis Fuller suffered various injuries, including but not limited to skin

irritation, blemishes and other skin infection treatment.

(d) Bonnie Fuller suffered various injuries, including but not limited to nasal,

pulmonary distress and other lung related treatment.

(e) Ruth Rose suffered various injuries, including but not limited to skin,

pulmonary distress and other lung related treatment.

(f) Dan Schlesinger suffered various injuries, including but not limited to skin,

pulmonary distress and other lung related treatment. 

Id. ¶ 169. Plaintiffs allege that they have incurred and will continue to incur medical expenses as

a result of these personal injuries and will suffer loss of income, wages, and other pecuniary

consequences. Id. ¶¶ 135, 136, 137, 170, 171, 172. 

A. Legal Standard

Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings. The Ninth

Circuit has held that the rule should be applied with “extreme liberality.” DCD Programs, LTD.

v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Howey v. United States, 481 F.2d 1187, 1190

(9th Cir. 1973). However, leave to amend “is not to be granted automatically.” Zivkovic v. S.

Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002), quoting Jackson v. Bank of Hawaii, 902

F.2d 1385, 1387 (9th Cir. 1990). Rather, a court must consider whether the proposed amendment

(1) would be futile, (2) would prejudice the non-moving party, (3) was brought in bad faith, or

(4) resulted from undue delay. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530 (N.D. Cal.

1989), citing DCD Programs, 833 F.2d at 186. Absent prejudice, or a strong showing of any of

the remaining factors, there exists a presumption under Rule 15(a) in favor of granting leave to

amend. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir.1997).

B. Discussion19

Defendants carry the burden of showing why leave to amend should not be granted.

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 The class definition for those plaintiffs who have not suffered personal injuries 20

includes those persons who: (1) have received refunds or non-defective replacements of their

moldy mattresses; (2) entered limited warranty agreements that bar consequential damages such

as damage to their bedding and shipping and handling costs; (3) discovered mold in their

mattress outside of the statute of limitations; and (4) failed to provide Defendants with notice of

the defect or an opportunity to cure. 

35

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Genentech, 127 F.R.D. at 530-31. They contend that the proposed amendments: (1) would be

futile; (2) would cause them substantial prejudice; (3) are brought in bad faith; and (3) are the

result of unreasonable delay.

1. Futility

 "[C]ourts will determine the legal sufficiency of a proposed amendment using the same

standard as applied on a Rule 12(b)(6) motion, see Miller v. RykoffSexton, Inc., 845 F.2d 209,

214 (9th Cir. 1988), [however] such issues are often more appropriately raised in a motion to

dismiss rather than in an opposition to a motion for leave to amend." SAES Getters S.p.A. v.

Aeronex, Inc., 219 F.Supp.2d 1081, 1086 (S.D. Cal. 2002), citing William W. Schwarzer, et al.,

CAL. PRAC. GUIDE: FED. CIV. PROC. BEFORE TRIAL § 8:422); see also Centeno v. Wilson,

No. 1:08-CV-1435-FJM, 2010 WL 1980157, at *1 (E.D. Cal. May 17, 2010) (“We apply the

same standard for determining the legal sufficiency of a proposed amendment that we apply in

deciding a Rule 12(b)(6) motion”). Because the allegations in the PFAC are nearly identical to

those in the TAC – with the exception of those related to personal injuries – the parties have had

a full opportunity to brief the sufficiency of Plaintiffs’ pleadings. Accordingly, for the same

reasons that the Court concluded above that Defendants’ motion to dismiss the TAC should be

granted without leave to amend (with the exception of the claims pled by the Williamses and

Schlesinger), see supra II, the Court also will deny Plaintiffs’ request for leave to file the PFAC

as its reframing of Plaintiffs’ previous claims and its class definitions suffers from almost all of

the same problems. 

20

Plaintiffs’ newly-framed class claims for personal injury also appear to be futile. In

dismissing Stearns’ original complaint, the Court noted the inherent difficulty and problems

posed by class-wide personal injury claims. Dkt. 28 at 11-12, citing Kennedy v. Baxter

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Healthcare Corp., 50 Cal.Rptr.2d 744, 743-44 (Cal. Ct. App. 1996) (“As the California Supreme

Court has observed class actions for personal injuries in mass tort litigation present a multitude

of problems.”); see also Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186 (9th Cir.2001)

(“Our circuit has recognized the potential difficulties of ‘commonality’ and ‘management’

inherent in certifying products liability class actions.”). The Court’s previously expressed view

that personal injury claims are not appropriate for class treatment has not changed since its

holding almost two years ago. 

In support of their individual personal injury claims, Plaintiffs allege that they have

suffered various injuries, including but not limited to, lung and pulmonary distress, skin

irritation, blemishes, other skin infection treatment, and other lung related treatment. PFAC ¶¶

134, 170. Plaintiffs also plead collectively that they had to pay for “checkups, medication,

diagnostic testing, biopsies, medical, surgical, and other related expenses” and that they “will be

forced to pay” for these same medical expenses in the future as a result of “negligence of the

defendants.” Id. ¶¶ 135, 136, 170, 171. These conclusory and generalized allegations do not

meet the pleading standard of Fed. R. Civ. P. 8. See Iqbal, 129 S.Ct. at 1949 (“a formulaic

recitation of the elements of a cause of action will not do.”); see also Clegg, 18 F.3d at 754-755

(9th Cir. 1994). Plaintiffs’ allegations with respect to causation suffer from the same deficiency. 

See e.g., PFAC ¶¶ 134, 169 (concluding that “as a direct and proximate result of the negligence

of the defendants, and each of them, plaintiff suffered grievous personal injuries. . . ). However,

Plaintiffs’ failure to plead their personal injury claims with sufficient specificity may be cured by

amendment. 

Defendants contend that allowing Stearns to amend her individual personal injury claims

is futile because Stearns waived these claims when she neglected to re-allege them in the FAC

after her original complaint was dismissed. The Ninth Circuit recently clarified that “a plaintiff

who omits previously dismissed claims from an amended complaint [does not] waive his right to

reallege these claims in further amendments at the district court level.” New York City

Employees’ Ret. Sys. v. Jobs, 593 F.3d 1018, 1025 (9 Cir. 2010). Accordingly, Stearns has not th

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 As noted several times previously, Schlesinger’s allegations as to when he first

21

discovered mold in his bed are inconsistent. In paragraph 51 he alleges that he first found mold

in his mattress on September 23, 2004; in paragraph 61 he alleges that he first called Select

Comfort with respect to mold in his bed in 2003. However, this discrepancy has no bearing on

the Court’s determination with respect to the statute of limitations, as both of these dates were

more than two years before the commencement of the instant action. 

37

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

waived her right to plead personal injury claims. 

Defendants also argue that allowing Schlesinger and Bryan Williams to assert personal

injury claims would be futile because the claims are barred by the applicable two-year statute of

limitations. See Cal. Code. Civ. P. § 335.1. Defendants point out that Schlesinger alleges he

first discovered mold in his mattress in 2003 or 2004, See PFAC ¶ 51, 61, and that Bryan 21

Williams discovered mold in his mattress on October 22, 2006. 

“A cause of action normally accrues when under the substantive law the wrongful act is

done and the liability or obligation arises, that is, when the action may be brought.” Clark v.

Upton, — F.Supp.2d —, 2010 WL 1027526, at *6, (E.D. Cal. Mar. 18, 2010), quoting Mosesian

v. County of Fresno, 28 Cal.App.3d 493, 500, 104 Cal.Rptr. 655 (1972). “An exception to the

general rule for defining the accrual of a cause of action-indeed, the ‘most important’ one-is the

discovery rule.” Id., quoting Norgart v. Upjohn Co., 21 Cal.4th 383, 397-398, 87 Cal.Rptr.2d

453, 981 P.2d 79 (1999). “[U]nder the delayed discovery rule, a cause of action accrues and the

statute of limitations begins to run when the plaintiff has reason to suspect an injury and some

wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time

would not have revealed a factual basis for that particular cause of action. In that case, the statute

of limitations for that cause of action will be tolled until such time as a reasonable investigation

would have revealed its factual basis.” Id., quoting Fox v. Ethicon Endo-Surgery, Inc., 35

Cal.4th 797, 802, 27 Cal.Rptr.3d 661, 110 P.3d 914 (2005); see also Hopkins v. Dow Corning

Corp., 33 F.3d 1116, 1120 (9th Cir. 1994) (“Under California’s discovery rule, the accrual date

of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause.”). 

“To invoke the discovery rule, plaintiff must plead facts which show ‘(1) the time and manner of

discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’”

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

Hopkins, 33 F.3d at 1120, quoting Saliter v. Pierce Bros. Mortuaries, 81 Cal.App.3d 292, 146

Cal.Rptr. 271, 274 (Ct.App.1978) 

While Schlesinger first discovered mold in his mattress in 2003 of 2004, it is unclear

from the PFAC, as it is currently pled, when Schlesinger first experienced personal injuries and

when he realized that these injuries were caused by the mold in his mattress. While the omission

of such facts highlights a deficiency in Schlesinger’s pleading of the delayed discovery rule, it

also prevents the Court from making a definitive determination that Schlesinger’s claim is timebarred. Bryan Williams’ pleadings present a different set of alleged facts. In her letter to

Defendants dated May 14, 2007, Karen Williams states that mold was discovered in the bed on

October 22, 2006, that “upon discovery of the moldy bed, it was immediately removed from the

home,” and that “upon discovery of the moldy bed, [sic] immediately raised the question; could

the MOLD found covering the inside of the Sleep Number bed possibly have had anything [sic]

thing to do with the illness’ [sic], lung masses and lump in the lung????? So research began, and

every test imaginable was done. . .” PFAC, Ex. C; see contra PFAC ¶ 52 (alleging that the

Williamses first discovered mold in the mattress on October 26, 2008). The letter makes clear

that Karen and Bryan Williams suspected that the mold in the mattress was responsible for

Bryan’s personal injuries no later than October 22, 2006. The statute of limitations began to run

on that date. Norgart, 21 Cal.4th at 397 (“Under Jolly. . .the plaintiff discovers the cause of

action when he at least suspects a factual basis, as opposed to a legal theory, for its elements,

even if he lacks knowledge thereof – when, simply put, he at least ‘suspects. . .that someone has

done something wrong’ to him. . .”), quoting Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1110, 245

Cal.Rptr. 658, 751 P.2d 923 (1988). 

While they cite no legal authority in support of their argument, Plaintiffs appear to

contend that the statute of limitations with respect to Schlesinger’s and Bryan Williams’ personal

injury claims also should be tolled because Defendants made affirmations that the mattresses

would not “incubate” or “produce” mold and were not the cause of their personal injuries. 

“Under California law, equitable tolling will be warranted where the defendants have induced the

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 Bryan Williams filed his personal injury claim in state court on October 22, 2008. 22

While this fact establishes that Defendants did not induce him to delay filing beyond October 22,

2008, it is unclear from the PFAC when the alleged tolling of the statute of limitations began. 

39

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

plaintiff to delay filing until after the statute of limitations has run.” Johnson v. Riverside

Healthcare System, LP, 534 F.3d 1116, 1127 (9th Cir. 2008), citing Mills v. Forestex Co., 108

Cal.App.4th 625, 652, 134 Cal.Rptr.2d 273 (2003) (citation omitted). While the PFAC presently

does not allege facts that would support equitable tolling on this basis, it is not apparent at this

time that Plaintiffs cannot do so. 

Finally, Defendants argue that Bryan Williams cannot maintain his personal injury claim

in this action because he is litigating the same claim against the same Defendants in the San

Mateo Superior Court. See Declaration of Andrew V. Stearns in Support of Plaintiffs’ Reply to

Motion for Leave to File Fourth Amended Class Action Complaint, Ex. G (Complaint filed in

Bryan Williams v. Select Comfort Retail Corp., et al, No. Civ. 477710, dated October 22,

2008). This is not so. “[O]verlapping or even identical federal and state court litigation may 22

proceed simultaneously. . .The rule that permits simultaneous litigation in state and federal court

of overlapping and even identical cases is deeply rooted in our system.” Noel v. Hall, 341 F.3d

1148, 1159 (9th Cir. 2003); see also Atlantic Coast Line Railroad v. Brotherhood of Locomotive

Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970) (“[T]he state and federal courts

had concurrent jurisdiction in this case, and neither court was free to prevent either party from

simultaneously pursuing claims in both courts.”). However, concurrent state and federal

litigation of identical claims is “limited. . by doctrines of abstention and comity.” Noel, 341 F.3d

at 1159. Accordingly, while Bryan Williams may maintain two separate lawsuits that allege

identical claims, the Court notes that it too may abstain from ruling on his claims while they are

pending before the state court. 

Accordingly, while Plaintiffs’ individual personal injury claims are not pled with the

detail required by Fed. R. Civ. P. 8, Defendants have not shown that allowing Plaintiffs to amend

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 Defendants do not otherwise challenge the futility of the personal injury claims 23

brought by Rose or Dennis Fuller. Defendants do contend that Bonnie Fuller’s allegations of

personal injuries are inconsistent with prior pleadings because she neglected to assert these same

injuries in the SAC. However, Bonnie Fuller’s prior silence on the topic of personal injuries

does not contradict her assertion of them now. 

Defendants also assert a passing challenge to venue with respect to the Fullers (who are

Florida residents) in a footnote of their opposition papers to Plaintiffs’ motion for leave to file

the PFAC. This is an inappropriate vehicle for raising a motion to dismiss for lack of venue. If

Defendants wish to challenge venue as to the Fullers they may do so in a future properly noticed

motion. 

40

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

these particular claims would be futile.23

2. Prejudice

To overcome Rule 15(a)'s liberal policy with respect to the amendment of pleadings a

showing of prejudice must be substantial. Genentech, 127 F.R.D. at 530-31. Neither delay

resulting from the proposed amendment nor the prospect of additional discovery needed by the

non-moving party in itself constitutes a sufficient showing of prejudice. Genentech, 127 F.R.D.

at 530-32; United States v. Continental Ill. Nat'l Bank and Trust Co. of Chicago, 889 F.2d 1248,

1255 (2d Cir. 1989). Nonetheless, “[d]istrict courts do not abuse their discretion when they deny

motions to amend that would cause undue delay and prejudice.” Dong Ah Tire & Rubber Co.,

Ltd. v. Glasforms, Inc., No. C 06-3359 JF (RS), 2009 WL 667171, at *2 (N.D. Cal. Mar.10,

2009), citing Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir.1991); see also Lockheed

Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir.1999) (“A need to reopen

discovery and therefore delay the proceedings supports a district court's finding of prejudice from

a delayed motion to amend”).

Defendants contend that they will suffer prejudice if Plaintiffs are allowed to file a fifth

complaint because rather than conducting an investigation, Plaintiffs have “repeatedly insisted on

bringing the broadest, everything-but-the-kitchen-sink claims possible and have insisted on

attempting to maintain the suit as an unworkable class action, in an attempt to expand this case

into something it is not, thereby necessitating Defendants’ successive motions to dismiss and

strike. Defendants argue that at some point, forcing [them] to again incur thousands of dollars to

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 While Plaintiffs technically did allege personal injury claims in the SAC as well as 24

their original complaint, the Court did not address the allegations in the SAC substantively or

provide guidance with respect to their sufficiency because they were new claims pled without

leave of Court. Dkt. 70 at 9-10 (dismissing Plaintiffs’ personal injury claims and explaining that

the Court’s prior order granted limited leave to amend and stated clearly that “Plaintiffs shall not

add any new defendants, plaintiffs or claims for relief without leave of the Court.”) 

41

Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

dismiss the complaint becomes prejudicial and unfair.” Opp. Mot. At 24. Moreover, Defendants

argue that in the two years since litigation has commenced, much of the property that Plaintiffs

claim has been destroyed by mold has been lost or altered, making Defendants ability to defend

against such claims more difficult. Finally, Defendants argue that permitting Plaintiffs to add

personal injury claims will change the gravamen of the case, resulting in prejudice to Defendants.

See Morongo Band of Mission Indians, 893 F.2d 1074, 1079 (9 Cir. 1990) (“The new claims th

set forth in the amended complaint would have greatly altered the nature of the litigation and

would have required defendants to have undertaken, at a late hour, an entirely new course of

defense. Again, this factor is not fatal to amendment, DCD Programs, Ltd., 833 F.2d at 186, but

it enters into the balance.”)

Plaintiffs contend that they will suffer prejudice if they are not permitted to amend to

plead their personal injury claims, but they do not address Defendants’ concerns. Plaintiffs also

argue that they need not seek leave to plead these claims because a “plaintiff is not prohibited

from realleging claims” that he has omitted in previous pleadings. Reply at 10. However, this

Court limited the scope of any amendment in its order dismissing the FAC, and consistent with

that order, Plaintiffs were required to make the instant motion. 

The Court acknowledges the expense incurred by Defendants in defending this action and

their frustration with litigating Plaintiffs’ four failed attempts to state a claim upon which relief

may be granted. However, Plaintiffs have attempted to plead individual personal injury claims

only on one prior occasion. Moreover, Defendants’ continued expense in litigating the action 24

will be mitigated by the fact that the Court will deny leave to amend with respect to all of

Plaintiffs’ class allegations. See supra II.B, III.B.1.

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

3. Bad Faith

“Examples of bad faith have included-but are not limited to-instances in which a party

makes a claim without alleging any newly discovered facts, makes a tactical decision to omit a

claim to avoid summary judgment, or includes a claim to harass or burden the other party.” E.g.,

Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir.1989); Acri v.

International Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir.1986);

M/V American Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1492 (9th Cir.1983).

Defendants argue that Plaintiffs chose not to allege their personal injury claims in the FAC in a

tactical move to preserve their class claims and counsel’s fees, but “now that Plaintiffs’ hopes of

bringing a class action have faded, they have brought individual personal injury claims, gambling

that something will go forward.” Opp. Mot. At 23. Moreover, Defendants argue that it is “bad

faith for B. Williams to assert a personal injury claim because he has an identical claim pending

in California state court against Select Comfort.” Id. at 23 n. 18.

While the pendency of Bryan Williams’s state court claim raises the possibility of

duplication of resources or conflicting determinations, it does not establish bad faith. Plaintiffs

argue that Defendants have been on notice of Plaintiffs’ personal injury claims through their

customer complaints, original pleading and SAC, and communications between counsel. The

Court concludes that Plaintiffs’ pleading practice does not rise to the level of bad faith. 

4. Delay

While delay alone will not justify the denial of leave to amend, DCD Programs, 833 F.2d

at 186, “‘late amendments to assert new theories are not reviewed favorably when the facts and

the theory have been known to the party seeking amendment since the inception of the cause of

action.’” Dong Ah Tire & Rubber Co., 2009 WL 667171, at *3, quoting Acri v. International

Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir.1986) (citations

omitted). Plaintiffs first alleged personal injury claims in their original complaint and then

attempted to allege the same claims in their SAC. Accordingly, it does not appear that Plaintiffs

purposefully or negligently delayed in pleading personal injury claims. In fact, with the

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Case Number 08-2746 JF (PVT)

ORDER GRANTING DEFENDANTS' MOTIONS TO STRIKE AND DISMISS, AND DENYING PLAINTIFFS'

MOTION FOR LEAVE TO FILE THEIR FOURTH AMENDED COMPLAINT

(JFLC1)

exception of the FAC, Plaintiffs have attempted to plead personal injury claims consistently. 

Accordingly, although it will deny their motion for leave to file the PFAC in its present form, the

Court will grant Plaintiffs leave to amend their individual personal injury claims. 

IV. ORDER

Good cause therefor appearing, Defendants’ motions to strike Plaintiffs’ class allegations

and dismiss the TAC are GRANTED as set forth herein. Plaintiffs’ motion for leave to file the

PFAC is DENIED. Plaintiffs may file a new pleading limited to their individual personal injury

claims, as well as Karen and Bryan Williams’ claims for negligence, strict product liability,

breach of express warranty, and violations of the MMWA. Schlesinger may attempt to explain

the factual contradictions with respect to his warranty claims. Any such pleading shall be filed

within thirty (30) days of the date of this order. Plaintiffs shall not add any new defendants,

plaintiffs or claims for relief without leave of Court.

IT IS SO ORDERED. 

DATED: July 21, 2010

_____________________________ 

 

JEREMY FOGEL

United States District Judge

Case 3:08-cv-02746-SC Document 93 Filed 07/21/10 Page 43 of 43