FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUU NGUYEN, individually, and on 

behalf of a class of similarly situated 

individuals,

Plaintiff-Appellant,

v.

NISSAN NORTH AMERICA, INC., a 

California Corporation,

Defendant-Appellee.

No. 18-16344

D.C. No.

5:16-cv-05591-

LHK

OPINION

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted June 11, 2019

San Francisco, California

Filed July 26, 2019

Before: MARY M. SCHROEDER and MILAN D. 

SMITH, JR., Circuit Judges, and DOUGLAS L. RAYES,*

District Judge.

Opinion by Judge Milan D. Smith, Jr.

 * The Honorable Douglas L. Rayes, United States District Judge for 

the District of Arizona, sitting by designation.
2 NGUYEN V. NISSAN NORTH AMERICA

SUMMARY**

Class Certification

The panel reversed the district court’s denial of class 

certification in an action against Nissan North America 

pursuant to state and federal warranty laws arising from an 

allegedly faulty hydraulic clutch system in plaintiff’s 2012 

Nissan vehicle.

The district court denied plaintiff’s motion for class 

certification on the ground that he failed to satisfy the 

predominance requirement of Federal Rule of Civil 

Procedure 23(b)(3) due to what the district court viewed as 

an inappropriate measure of damages. 

The panel held that plaintiff’s causes of action under 

California’s Consumers Legal Remedies Act, the SongBeverly Consumer Warranty Act, and the Magnuson-Moss 

Warranty Act were all viable. The panel held that plaintiff 

sufficiently demonstrated a nexus between his legal 

theory—that Nissan violated California law by selling 

vehicles with a defective clutch system that was not reflected 

in the sale price—and his damages model—the average cost 

of repair. The panel determined that plaintiff did not seek 

damages for the faulty performance of the clutch system, 

which as the district court concluded, would require an 

individualized analysis that might defeat predominance. 

Instead, plaintiff’s theory was that the allegedly defective 

clutch was itself the injury, regardless of whether the faulty 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
NGUYEN V. NISSAN NORTH AMERICA 3

clutch caused performance issues. The panel concluded that 

the district court abused its discretion when it denied class 

certification based on a misconception of plaintiff’s legal 

theory.

COUNSEL

Ryan Wu (argued) and John E. Stobart, Capstone Law APC,

Los Angeles, California, for Plaintiff-Appellant.

Alan J. Lazarus (argued) and Matthew J. Adler, Drinker 

Biddle & Reath LLP, San Francisco, California; Zoë K. 

Wilhelm and Adam J. Thurston, Drinker Biddle & Reath 

LLP, Los Angeles, California; Sherman Vance Wittie and E. 

Paul Cauley Jr., Drinker Biddle & Reath LLP, Dallas, Texas;

for Defendant-Appellee.

Kathy A. Wisniewski and Stephen A. D’Aunoy, Thompson 

Coburn LLP, St. Louis, Missouri, for Amicus Curiae FCA 

US LLC.

Philip S. Goldberg, Shook Hardy & Bacon LLP, 

Washington, D.C.; Andrew J. Trask, Shook Hardy & Bacon 

LLP, San Francisco, California; for Amici Curiae Alliance 

of Automobile Manufacturers and Association of Global 

Automakers.

Ashley C. Parrish, Jesse Snyder, and Jacqueline Glassman, 

King & Spalding LLP, Washington, D.C.; Jonathan D. Urick 

and Steven P. Lehotsky, U.S. Chamber of Litigation Center, 

Washington, D.C.; Leland P. Frost and Peter C. Tolsdorf, 

Manufacturers’ Center for Legal Action, Washington, D.C.; 
4 NGUYEN V. NISSAN NORTH AMERICA

for Amici Curiae Chamber of Commerce of the United 

States and National Association of Manufacturers.

OPINION

M. SMITH, Circuit Judge:

When Plaintiff Huu Nguyen purchased a new 2012 

Nissan 370Z as a college graduation present for his son, he 

was unaware of what he alleges was a potentially 

catastrophic design defect hidden in the vehicle’s hydraulic 

clutch system. After the clutch purportedly malfunctioned—

and Plaintiff spent more than $700 replacing it—he filed a 

putative class action against Defendant Nissan North 

America, Inc. (Nissan), asserting causes of action under state 

and federal warranty laws.

The district court denied Plaintiff’s motion for class 

certification, concluding that he failed to satisfy the 

predominance requirement of Federal Rule of Civil 

Procedure 23(b)(3) due to what it viewed as an inappropriate 

measure of damages. Because we conclude that, following 

Comcast Corp. v. Behrend, 569 U.S. 27 (2013), Plaintiff’s 

proposed damages model is consistent with his theory of 

liability, we reverse the district court’s denial of class 

certification and remand.
NGUYEN V. NISSAN NORTH AMERICA 5

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

A. Alleged Defect

This case involves an allegedly faulty hydraulic clutch 

system in various vehicles manufactured by Nissan (the 

Class Vehicles).1

The typical components of a hydraulic clutch system 

include a fluid reservoir, a clutch master cylinder (CMC), 

and a clutch slave cylinder (CSC), which is sometimes 

referred to as the release bearing.2 As explained by 

Plaintiff’s expert, Michael Stapleford, P.E., the clutch 

system is a dry friction system that uses brake fluid in a 

discrete reservoir to transfer heat from the clutch 

components through the base of the CSC to the attached 

transmission front cover and the surrounding atmosphere. 

Such a system routinely generates heat ranging from 200 to 

300 degrees Celsius, with hard use resulting in temperatures 

as high as 400 degrees Celsius.

 1 Specifically, the Nissan 350Z, model years 2007–09; the Nissan 

370Z, model years 2009–15; the Infiniti G35, model years 2007–08; the 

Infiniti G37, model years 2008–14; and the Infiniti Q60.

2 A properly functioning hydraulic clutch system is engaged when 

the driver depresses the clutch pedal, which causes a piston in the CMC 

to push fluid through the steel hydraulic line to the CSC and against the 

integrated release bearing, pressurizing the system. This in turn causes 

the clutch kit (pressure plate, clutch disc, and flywheel) to disengage the 

engine from the transmission. Releasing the clutch pedal releases the 

fluid pressure, which allows the gears to engage smoothly and 

efficiently.
6 NGUYEN V. NISSAN NORTH AMERICA

Plaintiff alleges that, in reconfiguring the Class 

Vehicles’ factory-installed clutch system in 2007, Nissan 

failed to properly account for heat transfer and produced a 

defective aluminum/plastic composite CSC that causes the 

system to overheat. Consequently, the clutch fluid boils and 

generates air that causes failure of the clutch pedal, such that 

it sticks to the floor and prevents a driver from shifting gears. 

A “sticky” clutch can make it difficult to control a vehicle’s 

speed, presenting both safety and performance issues.

B. Nissan’s Response

A consumer complaint submitted as evidence by 

Plaintiff indicates that the Class Vehicles began to 

malfunction as early as June 2007, while Nissan’s own 

records identified the issue starting in October of that year. 

An internal Nissan report suggested that “abnormal hightemperature [during] continued use of partial clutch 

engagement might be the cause.” Emails exchanged 

between Nissan employees in 2012 further discussed the 

sticky clutch problem and its potential causes, and in July 

2012, a Nissan project engineer wrote,

This issue is great enough that it warrants a 

serious look by R&D as to how we can 

improve the feel, and function of the clutch 

system. . . . Customers are universally 

dissatisfied with the feel and performance of 

the system even when it is performing as 

designed. . . . Combine that with the frequent 

claims of clutch pedal sticking to floor and 

you’ve taken a dissatisfaction item and made 

it into a breakdown item. I think a wholesale 

approach to a whole new hydraulic system, 

including a new pedal, is warranted.
NGUYEN V. NISSAN NORTH AMERICA 7

Plaintiff claims that “[d]espite its investigations and 

testing, or even the change to a higher quality hydraulic fluid 

in the Class Vehicles, Nissan never informed consumers that 

the clutch system in the Class Vehicles had an inherent 

defect that made it prone to heat-related problems.” In his 

complaint, Plaintiff asserted that if he and the other putative 

class members “knew about these defects at the time of sale 

or lease, [they] would not have purchased or leased the Class 

Vehicles or would have paid less for them.”

C. Plaintiff’s 2012 Nissan 370Z

Plaintiff purchased a new 2012 Nissan 370Z from an 

authorized Nissan dealer in Santa Clara County, California, 

as a college graduation present for his son, Michael. In 

March 2014, Michael was driving the 370Z on the freeway 

when the clutch pedal lost pressure and did not return to its 

depressed position; Michael had to pull over to the shoulder 

of the freeway and slow down until the clutch allowed him 

to shift into second gear. The Nissan dealership replaced the 

CSC at no charge because the vehicle was still under 

warranty. When a similar situation developed two years 

later, however, the 370Z was no longer under warranty, and 

so Plaintiff had the CSC replaced by an auto repair shop for 

$721.75.

II. Procedural History

Plaintiff’s first amended complaint alleged five causes of 

action against Nissan: (1) violations of California’s 

Consumers Legal Remedies Act (CLRA); (2) violations of 

California’s Unfair Competition Law (UCL); (3) breach of 

implied warranty pursuant to the Song-Beverly Consumer 

Warranty Act (Song-Beverly Act); (4) breach of implied 

warranty pursuant to the Magnuson-Moss Warranty Act 

(Magnuson-Moss Act); and (5) unjust enrichment. The 
8 NGUYEN V. NISSAN NORTH AMERICA

district court granted in part Nissan’s motion to dismiss, 

removing Plaintiff’s UCL and unjust enrichment claims, and 

his request for injunctive relief under the CLRA.

Plaintiff moved for class certification pursuant to Federal 

Rule of Civil Procedure 23(b)(3) (or, in the alternative, under 

Rule 23(c)(4) for liability only), seeking to certify (1) a class 

of “[a]ll individuals in California who purchased or leased, 

from an authorized Nissan dealer, a new Nissan vehicle 

equipped with a FS6R31A manual transmission”; and (2) a 

CLRA subclass of “[a]ll members of the Class who are 

‘consumers’ within the meaning of California Civil Code 

§ 1761(d).” Although Nissan opposed class certification for 

various reasons—including that Plaintiff was not an 

adequate class representative, that individual issues 

predominated due to the varying types of automobiles 

included in the Class Vehicles, and that Nissan’s purported 

knowledge of the defect changed over the course of the class 

period—a major point of dispute, and the issue on which the 

district court’s eventual order hinged, concerned Plaintiff’s 

damages model.

According to Plaintiff, his “damages model is based on 

the economic principle of benefit-of-the-bargain and is 

consistent with [his] theory of liability.” Assuming that class 

members would have either paid less than sticker price or 

not purchased a defective vehicle at all had the nature of the 

clutch system been divulged by Nissan, Plaintiff seeks “to 

recover the difference in value between the non-defective 

vehicles Nissan promised and the defective vehicles that 

were delivered based on the cost[] to replace the composite 

CSC with one that is solid cast-aluminum.” Nissan 

challenges this proposed damages model, citing the report of 

an expert who, in its words, “rejected the notion that 
NGUYEN V. NISSAN NORTH AMERICA 9

average-cost-of-repair represented the amount that informed 

consumers would discount the price of the [Class] Vehicles.”

The district court agreed with Nissan and denied 

Plaintiff’s motion for class certification. It concluded that 

“Plaintiff [] failed to satisfy the predominance requirement 

of Rule 23(b)(3),” based on what the court viewed as a 

“problematic” damages model. The court explained,

Under the proposed benefit of the bargain 

model, damages are the difference between 

the value Nissan represented and the value 

class members received, measured at the time 

of purchase. However, the difference 

between value represented and value 

received only equals the cost to replace the 

defective CSC if consumers would have 

deemed the defective part valueless.

(citation omitted). The court reasoned that, under Plaintiff’s 

proposed model, if a class member “derived value from the 

defective CSC—be it by selling it, repurposing it, or simply 

driving a ways before replacing it—the class member will 

have received the full benefit of the bargain and the 

monetary value of the defective part. That is not an 

appropriate measure of damages.” Because the record 

contained no evidence that the defective clutch was 

valueless—but did contain evidence to the contrary, since 

“Plaintiff’s vehicle was driven for approximately 26,629 

miles before the original CSC malfunctioned”—the court 

rejected Plaintiff’s damages model as being an improper 

measure of the benefit of the bargain. Therefore, the district 

court concluded that Plaintiff could not satisfy the

predominance requirement of Rule 23(b)(3).
10 NGUYEN V. NISSAN NORTH AMERICA

We subsequently granted Plaintiff’s timely petition for 

permission to appeal the denial of class certification pursuant 

to Rule 23(f).

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1292(e) 

and Rule 23(f). See Chamberlan v. Ford Motor Co., 

402 F.3d 952, 955 (9th Cir. 2005).

“A district court’s order denying class certification is 

reviewed for abuse of discretion.” Civil Rights Educ. & 

Enf’t Ctr. v. Hosp. Props. Tr., 867 F.3d 1093, 1103 (9th Cir. 

2017). “A district court would necessarily abuse its 

discretion if it based its ruling on an erroneous view of the 

law.” United States v. Hinkson, 585 F.3d 1247, 1259 (9th 

Cir. 2009) (en banc) (quoting Cooter & Gell v. Hartmarx 

Corp., 496 U.S. 384, 405 (1990)). But, if the district court 

“applied the correct legal standard,” then we will “set aside 

its decision only if the court’s reasoning was ‘illogical, 

implausible, or without support in inferences that may be 

drawn from the facts in the record.’” Civil Rights Educ. & 

Enf’t Ctr., 867 F.3d at 1103 (quoting Jimenez v. Allstate Ins. 

Co., 765 F.3d 1161, 1164 (9th Cir. 2014)).

ANALYSIS

The central issue before us is whether Plaintiff’s 

proposed damages model—specifically, a benefit-of-thebargain model as measured by the average cost of replacing 

the allegedly defective clutch system—satisfies Rule 

23(b)(3)’s predominance requirement.

In order to certify a class under Rule 23(b)(3), a court 

must find that “questions of law or fact common to class 

members predominate over any questions affecting only 
NGUYEN V. NISSAN NORTH AMERICA 11

individual members, and that a class action is superior to 

other available methods for fairly and efficiently 

adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3); see 

also Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 

1189 (9th Cir. 2001), as amended, 273 F.3d 1266 (9th Cir. 

2001). Although uncertain damages calculations do not 

alone defeat certification, Yokoyama v. Midland Nat’l Life 

Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010), the Supreme 

Court has emphasized that “at the class-certification stage 

(as at trial), any model supporting a ‘plaintiff’s damages case 

must be consistent with its liability case.’” Comcast, 

569 U.S. at 35 (emphasis added) (quoting ABA Section of 

Antitrust Law, Proving Antitrust Damages: Legal and 

Economic Issues 57, 62 (2d ed. 2010)); see also id. at 38 

(“The first step in a damages study is the translation of the 

legal theory of the harmful event into an analysis of the 

economic impact of that event.” (quoting Fed. Judicial Ctr., 

Reference Manual on Scientific Evidence 432 (3d ed. 

2011))).

Comcast did not alter our holding that individualized 

damages issues do not alone defeat certification. See Pulaski 

& Middleman, LLC v. Google, Inc., 802 F.3d 979, 988 (9th 

Cir. 2015) (“Yokoyama remains the law of this court, even 

after Comcast.”); see also Jimenez, 765 F.3d at 1168 (“So 

long as the plaintiffs were harmed by the same conduct, 

disparities in how or by how much they were harmed did not 

defeat class certification.”). But Comcast requires that 

“plaintiffs [] be able to show that their damages stemmed 

from the defendant’s actions that created the legal liability.” 

Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 

2013); see also Just Film, Inc. v. Buono, 847 F.3d 1108, 

1120 (9th Cir. 2017) (“[P]laintiffs must show that ‘damages 

are capable of measurement on a classwide basis,’ in the 

sense that the whole class suffered damages traceable to the 
12 NGUYEN V. NISSAN NORTH AMERICA

same injurious course of conduct underlying the plaintiffs’ 

legal theory.” (quoting Comcast, 569 U.S. at 34)). In short, 

“[u]ncertainty regarding class members’ damages does not 

prevent certification of a class as long as a valid method has 

been proposed for calculating those damages.” Lambert v. 

Nutraceutical Corp., 870 F.3d 1170, 1182 (9th Cir. 2017), 

rev’d on other grounds, 139 S. Ct. 710 (2019).

I. Plaintiff’s Causes of Action

We must first consider Plaintiff’s causes of action in 

order to determine whether they permit recovery based on 

the benefit of the bargain. Following the district court’s 

partial grant of Nissan’s motion to dismiss, Plaintiff was left 

with three viable causes of action at the time of class 

certification: claims under the CLRA, the Song-Beverly Act, 

and the Magnuson-Moss Act.3

A. The CLRA

The CLRA “shall be liberally construed and applied to 

promote its underlying purposes, which are to protect 

consumers against unfair and deceptive business practices 

and to provide efficient and economical procedures to secure 

such protection.” Cal. Civ. Code § 1760; see also Hinojos 

v. Kohl’s Corp., 718 F.3d 1098, 1108 (9th Cir. 2013) (“[T]he 

 3 The Magnuson-Moss Act incorporates the substantive provisions 

of state warranty laws. See Clemens v. DaimlerChrysler Corp., 534 F.3d 

1017, 1022 (9th Cir. 2008) (“[T]his court’s disposition of the state law 

warranty claims determines the disposition of the Magnuson-Moss Act 

claims.”); Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 

1986) (“[E]xcept in the specific instances in which Magnuson-Moss 

expressly prescribes a regulating rule, the Act calls for the application of 

state written and implied warranty law, not the creation of additional 

federal law.”). Accordingly, we focus only on Plaintiff’s causes of 

action under California law—the CLRA and Song-Beverly Act.
NGUYEN V. NISSAN NORTH AMERICA 13

CLRA’s ‘any damage’ requirement is a capacious one that 

includes any pecuniary damage as well as opportunity costs 

and transaction costs that result when a consumer is misled 

by deceptive marketing practices.”); Wilens v. TD 

Waterhouse Grp., Inc., 15 Cal. Rptr. 3d 271, 274 (Ct. App. 

2003) (noting that “[i]f the consumer suffers damage as a 

result of an unlawful act” under the CLRA, then “the 

consumer can bring an action against the defendant for 

actual damages, punitive damages, injunctive relief or 

restitution”). We have noted that “[c]lass wide damages 

calculations under the . . . CLRA are particularly forgiving. 

California law ‘requires only that some reasonable basis of 

computation of damages be used, and the damages may be 

computed even if the result reached is an approximation.’” 

Lambert, 870 F.3d at 1183 (quoting Pulaski, 802 F.3d 

at 989).

Here, we are satisfied that Plaintiff’s proposed benefitof-the-bargain measure of damages is both cognizable under 

the CLRA and a reasonable basis of computation. Courts 

have viewed similar models of recovery favorably in the 

past. See, e.g., Colgan v. Leatherman Tool Grp., Inc., 

38 Cal. Rptr. 3d 36, 42–43 (Ct. App. 2006) (describing a 

“market approach” for “determin[ing] the amount of actual 

damages for a CLRA award,” which provides that “[o]ne 

defrauded in the purchase, sale or exchange of property is 

entitled to recover the difference between the actual value of 

that with which the defrauded person parted and the actual 

value of that which he received, together with any additional 

damage arising from the particular transaction” (quoting Cal. 

Civ. Code § 3343)); see also Astiana v. Kashi Co., 

291 F.R.D. 493, 506 (S.D. Cal. 2013) (“A court awarding 

restitution under the California consumer protection laws 

has ‘“very broad” discretion to determine an appropriate 

remedy award as long as it is supported by the evidence and 
14 NGUYEN V. NISSAN NORTH AMERICA

is consistent with the purpose of restoring to the plaintiff the 

amount that the defendant wrongfully acquired.’” (quoting 

Wiener v. Dannon Co., 255 F.R.D. 658, 670 (C.D. Cal. 

2009))).4 Nissan has cited no authority, and we are not 

aware of any, precluding Plaintiff’s theory of recovery under 

the CLRA.

B. The Song-Beverly Act

Plaintiff’s damages model is similarly cognizable under 

the Song-Beverly Act, which provides that “[t]he measure of 

the buyer’s damages in an action . . . shall include the rights 

of replacement or reimbursement.” Cal. Civ. Code 

§ 1794(b); see also id. § 1794(b)(2) (“Where the buyer has 

accepted the goods, Sections 2714 and 2715 of the 

Commercial Code shall apply, and the measure of damages 

shall include the cost of repairs necessary to make the goods 

conform.”). California Commercial Code section 2714 

provides that “[t]he measure of damages for breach of 

warranty is the difference at the time and place of acceptance 

between the value of the goods accepted and the value they 

would have had if they had been as warranted, unless special 

circumstances show proximate damages of a different 

amount.” Cal. Com. Code § 2714(2); see also S. M. Wilson 

& Co. v. Smith Int’l, Inc., 587 F.2d 1363, 1375 (9th Cir. 

1978) (explaining that section 2714(2) entitles a plaintiff “to 

recover the monetary equivalent of the benefit of his 

 4 We further note that Plaintiff’s damages model is consistent with 

the CLRA’s safe harbor provision, which requires that a customer 

“[n]otify the person alleged to have” employed unlawful practices and 

“[d]emand that the person correct, repair, replace, or otherwise rectify

the goods or services.” Cal. Civ. Code § 1782(a) (emphasis added).
NGUYEN V. NISSAN NORTH AMERICA 15

bargain”).5 Accordingly, “[u]nder California law the 

remedies for breach of the implied warranty include ‘benefit 

of the bargain’ damages.” Ironshore Specialty Ins. Co. v. 

23andMe, Inc., No. 14-cv-03286-BLF, 2015 WL 2265900,

at *4 (N.D. Cal. May 14, 2015).

II. Plaintiff’s Theory of Liability

Having determined that recovery based on the benefit of 

the bargain is cognizable under Plaintiff’s causes of action, 

we must now determine whether this damages model flows 

from his theory of liability. See Comcast, 569 U.S. at 35.

In his motion for class certification, Plaintiff asserted 

that he

has alleged, and can prove through common 

evidence, that the Class Vehicles were sold 

with defective CSCs. That allegation is 

susceptible to common proof regarding the 

design of the CSC, which is substantially the 

same for all Class Vehicles, and individual 

factors do not affect whether the Class 

[V]ehicles were sold with a defective CSC.

(citation omitted). This characterization is crucial. 

Plaintiff’s legal theory is not based on the performance of 

the allegedly defective clutch system, but instead the system

itself, which he claims is defective. Had Plaintiff alleged 

that performance problems constituted the defect and caused 

his and the class members’ injuries, then the benefit of the 

bargain would not be the appropriate measure of damages 

 5 Section 2715 provides for incidental and consequential damages, 

which are not at issue here.
16 NGUYEN V. NISSAN NORTH AMERICA

because, as the district court noted, class members might 

have received varying levels of value based on if and when 

they experienced a sticky clutch problem. But Plaintiff’s 

theory is that Nissan knowingly designed a defective clutch 

system and did not inform consumers of the defect. His 

expert explained that the CSC “is defectively designed 

because its wrought aluminum cylinder and plastic base 

assembly does not provide enough thermal conductivity to 

effectively transfer heat from the clutch components to the 

transmission front cover and surrounding air during clutch 

engagement.” This allegedly defective clutch system “is the 

same or substantially similar in all of the Class Vehicles.” 

Accordingly, as Plaintiff argues, “under [his] theory, the 

defect exists—and must be remedied—whether or not the 

symptoms have manifested yet.”

Both Nissan and the district court mischaracterized 

Plaintiff’s theory as being centered on performance issues, 

rather than the defective system itself. Nissan argues that 

Plaintiff’s “model assumed that 100% of the vehicles would 

manifest a clutch assembly defect, and none of them would 

malfunction but for the design flaw.” But this is not 

accurate; Plaintiff’s theory is that the defect was inherent in 

each of the Class Vehicles at the time of purchase, regardless 

of when and if the defect manifested. He alleges that Nissan 

violated the CLRA because it knew about the defective 

clutch system and failed to disclose it at the point of sale, 

that “a reasonable person would have considered [the fact of 

the alleged defect] to be important in deciding whether to 

purchase or lease Class Vehicles,” and thus that Plaintiff and 

class members “would not have purchased or leased Class 

Vehicles equipped with transmissions, or would have paid 

less for them.” See Soule v. Gen. Motors Corp., 882 P.2d 

298, 308 n.3 (Cal. 1994) (“[T]he ordinary consumers of 

modern automobiles may and do expect that such vehicles 
NGUYEN V. NISSAN NORTH AMERICA 17

will be designed so as not to explode while idling at 

stoplights, experience sudden steering or brake failure as 

they leave the dealership, or roll over and catch fire in twomile-per-hour collisions.”). Plaintiff further alleges that, 

under the Song-Beverly Act, the Class Vehicles “suffered 

from an inherent defect at the time of sale.” Plaintiff 

correctly contends that “under both causes of action, the sale 

of the vehicle with the known defect is the liabilitytriggering event, not when the overheating manifests.” See

Daniel v. Ford Motor Co., No. 2:11-02890 WBS EFB, 2016 

WL 2899026, at *7 (E.D. Cal. May 18, 2016) (“[A] 

reasonable jury could conclude that a consumer would 

demand that the purchase price of a vehicle with a defect be 

reduced by the cost of remedying that defect.”); Kearney v. 

Hyundai Motor Co., No. SACV 09-1298 DOC (MLGx), 

2010 WL 9093204, at *5 (C.D. Cal. June 4, 2010) 

(determining that if “the receipt of a vehicle whose alleged 

defects reduced the car’s value and deprived the consumer 

of the benefit of the bargain, even when the alleged defects 

did not later materialize,” then “the loss was suffered ‘at the 

moment’ of purchase” (citing Cole v. Gen. Motors Corp., 

484 F.3d 717, 723 (5th Cir. 2007))).

Plaintiff’s theory is consistent with our opinion in Wolin 

v. Jaguar Land Rover North America, LLC, in which we 

concluded that “[t]he district court erred when it concluded, 

without discussion, that certification is inappropriate 

because [the plaintiffs] did not prove that the defect 

manifested in a majority of the class’s vehicles.” 617 F.3d 

1168, 1173 (9th Cir. 2010). We explained that the plaintiff

alleges breach of implied warranty because 

the vehicles were defective and not of 

merchantable quality at the time they left 

Land Rover’s possession. Common issues 
18 NGUYEN V. NISSAN NORTH AMERICA

predominate such as whether Land Rover 

was aware of the existence of the alleged 

defect, whether Land Rover had a duty to 

disclose its knowledge and whether it 

violated consumer protection laws when it 

failed to do so. . . . [W]e have held that proof 

of the manifestation of a defect is not a 

prerequisite to class certification.

Id. Moreover, in Pulaski, we clarified that a restitution 

calculation under California law

need not account for benefits received after 

purchase [where] the focus is on the value of 

the service at the time of purchase. Instead 

. . . the focus is on the difference between 

what was paid and what a reasonable 

consumer would have paid at the time of 

purchase without the fraudulent or omitted 

information.

802 F.3d 989.6 Here, in denying Plaintiff’s motion for class 

certification, the district court focused on potential postpurchase value, suggesting that “the difference between 

value represented and value received only equals the cost to 

replace the defective CSC if consumers would have deemed 

 6 Pulaski dealt with claims under the UCL and California’s False 

Advertising Law, not the CLRA. See 802 F.3d at 983. But although 

“[d]amages under the CLRA on the one hand and restitution under the 

False Advertising and Unfair Competition Laws on the other hand are 

different remedies,” the CLRA contemplates restitution, and that concept 

is treated similarly under the three laws. Colgan, 38 Cal. Rptr. 3d at 58–

59; see also Cortez v. Purolator Air Filtration Prods. Co., 999 P.2d 706, 

713 (Cal. 2000) (discussing the overlap of “restitution” and “damages”).
NGUYEN V. NISSAN NORTH AMERICA 19

the defective part valueless.” Given Plaintiff’s theory of 

liability, this conclusion was inconsistent with Wolin and 

Pulaski.

7

 7 That conclusion was also inconsistent with the holdings of other 

circuits, which have described benefit-of-the-bargain recovery much as 

we did in Pulaski. In Carriuolo v. General Motors Co., for example, the 

Eleventh Circuit cited with approval a Florida state case that asked, “Is 

a car with defective seatbelt buckles worth less than a car with 

operational seatbelt buckles? Common sense indicates that it is[.]” 

823 F.3d 977, 987 (11th Cir. 2016) (alteration in original) (quoting 

Collins v. DaimlerChrysler Corp., 894 So. 2d 988, 991 (Fla. Dist. Ct. 

App. 2004)). The Carriuolo court determined that it confronted a 

“similar question” that was also “amenable to classwide resolution,” 

explaining that

a manufacturer’s misrepresentation may allow it to 

command a price premium and to overcharge 

customers systematically. Even if an individual class 

member subjectively valued the vehicle equally with 

or without the accurate [safety information] sticker, 

she could have suffered a loss in negotiating leverage 

if a vehicle with perfect safety ratings is worth more 

on the open market.

Id. The court therefore rejected the defendant’s argument that “the 

liability determination will be highly individualized because the buying 

and leasing experiences of each proposed class member were not 

uniform.” Id. at 985. Instead, the court concluded that “damages should 

reflect the difference between the market value” of what was promised 

and what was delivered; “[u]nlike the calculation of an individual 

consumer’s direct pecuniary loss, which would limit the plaintiff to the 

difference of what she paid and the actual value received, the [applicable]

‘benefit of the bargain’ model provides a standardized class-wide 

damages figure because the plaintiff’s out-of-pocket payment is 

immaterial.” Id. at 986; see also In re Whirlpool Corp. Front-Loading 

Washer Prods. Liab. Litig., 722 F.3d 838, 856–57 (6th Cir. 2013) 

(“Because all Duet owners were injured at the point of sale upon paying 

a premium price for the Duets as designed, even those owners who have 
20 NGUYEN V. NISSAN NORTH AMERICA

Plaintiff alleges that Nissan concealed the clutch 

system’s defects from consumers, that the defect was 

material because it adversely affected the “safety and 

reliability” of the Class Vehicles, and that he did not get what 

he bargained for—a transmission “fit for [its] intended use.” 

A benefit-of-the-bargain model of damages aligns with this 

legal theory; that measure

is concerned with satisfying the expectancy 

interest of the defrauded plaintiff by putting 

him in the position he would have enjoyed if 

the false representation relied upon had been 

true; it awards the difference in value 

between what the plaintiff actually received 

and what he was fraudulently led to believe 

he would receive.

Stout v. Turney, 586 P.2d 1228, 1232 (Cal. 1978). Plaintiff 

seeks to recover damages equaling the amount he 

purportedly overpaid in purchasing a vehicle with a 

defective clutch; he “is not seeking a full refund for the 

vehicle purchase, but for the cost of replacing [] a defective 

component, which is a proxy for [his] overpayment of the 

vehicle at the point of sale.” Whether his proposed 

calculation of the replacement cost is accurate, whether the 

clutch was actually defective, and whether Nissan knew of 

the alleged defect are merits inquiries unrelated to class 

certification. For now, it is sufficient that Plaintiff has 

demonstrated the nexus between his legal theory—that 

Nissan violated California law by selling vehicles with a 

 

not experienced a mold problem are properly included within the 

certified class.”).
NGUYEN V. NISSAN NORTH AMERICA 21

defective clutch system that was not reflected in the sale 

price—and his damages model—the average cost of repair.

In response, Nissan maintains that “[t]he manifestation 

requirement [] impacts the damages analysis.” It cites 

Cardinal Health 301, Inc. v. Tyco Electronics Corp., in 

which the California Court of Appeal noted that “[u]nless a 

product actually manifests an alleged defect, the plaintiff has 

not suffered damages with respect to an implied warranty 

claim.” 87 Cal. Rptr. 3d 5, 33 (Ct. App. 2008); see also

Hicks v. Kaufman & Broad Home Corp., 107 Cal. Rptr. 2d 

761, 772–73 (Ct. App. 2001) (“If the defect has not 

manifested itself . . . the buyer has received what he 

bargained for.”). Nissan’s argument, however, conflates 

cases where a defect causes an injury, and those, like this 

one, where the defect itself is the injury. As the Court of 

Appeal has explained, describing the facts of Anthony v. 

General Motors Corp., 109 Cal. Rptr. 254 (Ct. App. 1973),

There the plaintiffs did not seek to recover for 

physical injury or property damage caused by 

the defect in the truck wheels. Rather, they 

sought to recover the cost of replacing the 

defective wheels. The primary right alleged 

to have been violated in Anthony, as in the 

case before us, was the right to take a product 

free from defect. The defect did not cause the 

plaintiffs’ injury; the defect was the injury.

Hicks, 107 Cal. Rptr. 2d at 771–72. 

This distinction is key, and it underscores the 

fundamental disconnect between Plaintiff’s damages theory 

and Nissan’s mischaracterization of what it entails. As we 

have explained, Plaintiff does not seek damages for the 

faulty performance of the clutch system; such a theory of 
22 NGUYEN V. NISSAN NORTH AMERICA

liability would, pursuant to Cardinal Health, Hicks, and the 

district court’s analysis, require individualized analysis that 

might defeat predominance. Instead, Plaintiff’s theory is 

that the allegedly defective clutch is itself the injury, 

regardless of whether the faulty clutch caused performance 

issues. Accordingly, Nissan’s argument is unavailing.8

CONCLUSION

Plaintiff’s theory of liability—that Nissan’s manufacture 

and concealment of a defective clutch system injured class 

members at the time of sale—is consistent with his proposed 

recovery based on the benefit of the bargain. We conclude 

that the district court abused its discretion when it denied 

class certification based on a misconception of Plaintiff’s 

legal theory. We therefore REVERSE the district court’s 

denial of class certification and REMAND for further 

proceedings.

 8 Nissan also argues that the district court’s denial of class 

certification is supported by other grounds in the record, but we observe 

that at least some of these additional contentions—for example, that 

Plaintiff’s “model misperceives the bargain” because Nissan did not 

promise that the Class Vehicles were free of defects—are merits

arguments, and beyond the scope of our review. See Stockwell v. City 

and County of San Francisco, 749 F.3d 1107, 1113 (9th Cir. 2014) 

(“Under Rule 23(f), the limitation on consideration of the merits to the 

relevant class certification questions is of jurisdictional significance.”).