Filed 3/25/21 Nalick v. Seagate Technology LLC CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

SCOTT NALICK,

Plaintiff and Appellant,

v.

SEAGATE TECHNOLOGY LLC,

Defendant and Respondent.

 A158237

 (San Francisco City & County

Super. Ct. No. CGC-15-547787)

Following class certification of plaintiff Scott Nalick’s causes of action 

for violations of the California Consumer Legal Remedies Act (Civ. Code, 

§ 1750 et seq.; CLRA) and California’s unfair competition law (Bus. & Prof. 

Code, § 17200 et seq.; UCL), pursuant to an omissions-based theory of 

liability, defendant Seagate Technology LLC (Seagate) moved for summary 

judgment. The trial court initially denied the motion in its entirety, 

concluding operative law authorized Nalick to pursue the claims at issue, and 

triable issues of material fact existed as to the threshold of materiality for a 

hard drive’s annual failure rate (AFR) and Seagate’s knowledge of such 

AFR’s. 

The trial court subsequently reconsidered and reversed its prior 

decision. The court affirmed its prior conclusion that prewarranty CLRA and 

UCL class claims could be pursued based on Seagate’s alleged failure to 

disclose high AFR’s for its hard drives. However, it concluded on 
2

reconsideration that the evidence only indicated a 3 percent AFR would be 

material to consumers, and Nalick failed to demonstrate Seagate had 

exclusive knowledge of such an AFR in connection with its hard drives. 

On appeal, Nalick contends the trial court improperly concluded 

Seagate’s duty to disclose did not apply to postwarranty claims under the 

CLRA and UCL. He further contends the record demonstrates AFR’s as low 

as 1 percent are material, and Seagate had knowledge of significantly higher 

AFR’s for its drives. We agree and reverse the order granting summary 

adjudication.

I. BACKGROUND

A. Factual Background

Seagate manufactures certain internal and external hard disk drives

identified as “ST3000DM001.” Seagate stated its internal drive provided 

“trusted performance, reliability, simplicity and capacity.” Seagate’s website 

highlighted the drives’ “Proven quality and performance,” and it 

disseminated reliability specifications that claimed its annual failure rate 

(AFR) was less than 1 percent. Regarding its external drives, Seagate 

claimed the drives would “protect” and keep “safe from loss” a user’s digital 

life and memories. 

Nalick purchased a Seagate Backup Plus Drive, which contains a 

ST3000DM001 drive. Nalick asserts the drive failed approximately one year 

after his purchase, and he could not retrieve his data. 

B. Procedural Background

Nalick filed a class action complaint, alleging the ST3000DM001 drives

contained a latent defect that caused them to fail at high rates resulting in 
3

data loss.1 The operative second amended complaint asserted Seagate’s 

misrepresentations and omissions about the drives’ reliability and failure 

rates violated the CLRA, the UCL, California’s false advertising law (Bus. & 

Prof. Code, § 17500 et seq.; FAL), and the Song-Beverly Consumer Warranty 

Act (Civ. Code, § 1790 et seq.; Song-Beverly Act). 

1. Class Certification

Following discovery, Nalick filed a motion for class certification. The 

motion asserted the class2 should be certified for the alleged violation of the 

Song-Beverly Act, the “fraudulent” prong of the UCL based on 

representations regarding the drives’ reliability and omissions regarding the 

drives’ failure rates, the CLRA based on concealing the drives’ failure rates, 

the “unfair” prong of the UCL, and the “unlawful” prong of the UCL based on 

the Song-Beverly Act and CLRA violations. Seagate opposed the motion. 

The trial court granted the class certification motion in part, “limited to 

CLRA and UCL (but not the illegal prong) claims based on omissions.” The 

trial court explained the Song-Beverly Act only applied if title passes in 

California, which created individualized issues and thus was not appropriate 

for certification. In limiting certification to claims “based on omissions,” the 

1 The complaint was also brought by another individual plaintiff, Tim 

Pozar. However, as part of its ruling on the class certification motion, 

discussed in part I.B.1., post, the trial court found Pozar’s claims atypical and 

he could not serve as a class representative. Pozar was dismissed from the 

case and is not part of this appeal. 

2 The motion identified the class as “All citizens of California who 

purchased a Seagate hard disk drive with model number ST3000DM001, or 

who purchased an external drive that contained an ST3000DM001 drive, on 

or after September 4, 2011.” It also identified a “Consumer Subclass.” The 

trial court noted the class definition was both under- and over-inclusive, but 

could be revised to address these issues. The class definition is not at issue 

in this appeal.
4

court also concluded the record could not support a finding that the hard 

drives contained a latent defect or that common questions predominate as to 

any affirmative misrepresentations. 

2. Seagate’s Motion for Summary Judgment

Seagate subsequently filed a motion for summary judgment or, in the 

alternative, summary adjudication. In connection with the class claims at 

issue in this appeal, it argued Nalick failed to demonstrate either a latent 

defect or any affirmative misrepresentations, and his remaining omissions 

claims were barred by Daugherty v. American Honda Motor Co., Inc. (2006) 

144 Cal.App.4th 824, 834 (Daugherty). Next, Seagate argued Nalick failed to 

establish a duty to disclose because there was no evidence of a sufficiently 

high AFR that would trigger any disclosure obligation. Likewise, Seagate 

argued there is no evidence of what level of AFR would be required to trigger 

a disclosure obligation. Seagate further asserted there is no evidence it was 

aware of or actively concealed any material information regarding a 

heightened AFR. 

In support of its motion, Seagate submitted three declarations from 

various employees: Glen Almgren, the engineering director for Seagate’s

reliability group; Sek Nam “Allen” Ng, Seagate’s director of customer 

technical support for the Americas Channel and Original Equipment 

Manufacturers; and David Trane, Seagate’s executive engineering director of 

released products. 

Almgren discussed the reliability demonstration testing (RDT) Seagate 

uses to qualify a drive for production and sale. Almgren explained the RDT 

process involved subjecting the drives to high stress, such as maximum 

workloads and increased temperatures. The data from the RDT was then 

used to calculate the mean time between/before failure (MTBF) and the AFR. 
5

He asserted the drives at issue were all at or below a 1 percent AFR at the 

time of their release. 

Ng recounted a recall issued by Apple for ST3000DM001 drives based 

on a cumulative return rate of around 5 or 6 percent, which would correspond 

to an annual return rate of “less than” 3 percent. 

Trane’s declaration discussed his role in reviewing and investigating 

return rate information on products, including the drives at issue. He 

summarized the cumulative return rates on the drives at issue at both 12 and 

24 months, and noted many returned drives were marked as “ ‘no trouble 

found’ ” following postreturn testing. For the retail products, Trane noted the 

total retail returns over 12 months was slightly less than 4 percent, which 

decreased to a 2.22 percent return rate when Seagate removed the “ ‘no 

trouble found’ ” and “ ‘could not duplicate’ ” returns. He opined these were 

normal return rates for consumer products. 

Seagate also submitted an expert declaration from Dr. Itamar 

Simonson, a professor of marketing at Stanford University. He conducted a 

marketing survey to determine the impact of an AFR of less than 8 percent as 

opposed to less than 1 percent. Participants were provided data sheets for 

two hypothetical hard drives with only the AFR changed. They were then

asked to indicate the likelihood of buying each hard drive. Simonson stated 

the survey results indicated participants shown the higher AFR were not less 

or more likely to purchase the hard drive, and the participants’ main focus 

was on other attributes such as capacity, ease of use, size, and brand. 

Nalick opposed the motion. He argued Daugherty did not bar the 

class’s omissions-based claims arising after a warranty period provided 

plaintiffs can prove a duty to disclose. Nalick asserted Seagate had such a 

duty to disclose because high AFR’s were material to a reasonable consumer, 
6

the drives’ AFR’s were consistently above 1 percent, and consumer demand 

decreases as the AFR rises above 1 percent. Nalick further asserted Seagate 

was aware the AFR was above 1 percent because it utilized improper 

methodology in its ongoing reliability testing (ORT) and provided overly 

optimistic projections on the impact of “ ‘fixes’ ” to known problems. He also 

contended the evidence demonstrated Seagate had a duty to disclose the high 

AFR’s because of representations made by Seagate regarding the drives’ 

reliability. 

In support of his opposition, Nalick submitted three expert 

declarations. First, Nalick submitted a declaration by Robert L. Klein, 

cofounder of a market research and consulting firm. Klein critiqued the 

survey and report prepared by Simonson, noting it changed a single number 

on a two-page document without explaining the significance of that change, 

hid the nature of the omission by stating a failure rate of less than 8 percent,

and failed to assess whether survey respondents noticed the changed AFR. 

Klein argued it “strains credulity under any common-sense test” that 

consumers would be equally likely to buy a hard drive with an AFR of 

1 percent versus 8 percent. 

Next, Nalick submitted an expert declaration from Stefan Boedeker, a 

statistician and economist employed as a managing director at the Berkeley 

Research Group. Boedeker developed an economic loss model to quantify the 

damages incurred by the class attributable to the purchase of hard drives 

with a higher AFR than 1 percent. He concluded, based on an empirical 

consumer study he conducted, an AFR above 10 percent would “quickly 

approach[ ] the sales price of the product and even exceed[ ] the sales price,” 

while lower AFR’s would result in economic loss at a lower rate. Boedeker 

calculated the estimated loss for AFR’s of 3, 5, 8, and 10 percent, 
7

corresponding to economic losses ranging from 16.9 percent to 75.4 percent, 

and noted “the model can be further refined to enable to quantification of 

economic losses for different interim AFR’s.” 

Finally, Nalick submitted a declaration by Dr. Jon Garrett Elerath, a 

mechanical engineer with experience developing and evaluating reliability 

activities for hard disk drives. He opined the product AFR’s at issue in this 

matter were substantially higher than 1 percent; Seagate employed flawed 

methodology in calculating the AFR’s; the assumptions Seagate employed 

regarding the effectiveness of “ ‘fixes’ ” to known problems were flawed and 

resulted in erroneous recalculations of the product AFR’s; the combination of 

the above issues resulted in AFR’s that were actually 5 to 10 times greater 

than the values shown in prerelease testing; postrelease ORT resulted in 

AFR’s regularly above 1 percent; Seagate accepted failure rates from ORT of 

up to 3 percent AFR and sometimes higher; Seagate employed flawed 

methodology to calculate postrelease AFR’s and flawed analyses of ORT 

results; Seagate’s prerelease test results were not consistent with postrelease 

ORT testing; and Seagate knew or should have known the true AFR’s of the 

products were well above generally accepted industry standards. 

The trial court initially denied the motion for summary judgment. In 

relevant part, the court concluded Daugherty did not completely bar Nalick’s 

theory of liability because it only excluded claims for defects arising after the 

warranty period. 

Next, the trial court addressed whether Seagate had knowledge of a 

materially heightened AFR. The court explained the evidence presented by 

Seagate—specifically Simonson’s declaration—demonstrated the AFR’s fell 

within the spectrum of consumer expectations. 
8

The trial court next assessed Nalick’s evidence and concluded he raised 

a dispute of fact as to whether an AFR higher than 1 percent would meet a 

reasonable consumer’s expectations and whether Seagate knew its products 

exceeded that threshold. Specifically, the court found Klein’s declaration

sufficiently disputed Simonson’s survey results and raised a factual dispute 

regarding the materiality of AFR’s in excess of 1 percent. The court then 

noted, when applying the 1 percent AFR rate, Seagate’s evidence raised 

triable issues of material fact by indicating at least some of the products had 

AFR’s in excess of 1 percent. The court did not rely upon Elerath’s and 

Boedeker’s declarations and thus did not rule upon Seagate’s objections to 

them.3

3. Seagate’s Request for Reconsideration

Seagate subsequently requested that the court, sua sponte, reconsider 

its ruling on the summary judgment motion. As relevant to this appeal, 

Seagate argued Klein’s declaration failed to create a triable issue of material 

fact because Klein only disputed Seagate’s expert report, and Nalick 

presented no admissible evidence to indicate a 1 percent AFR was material to 

consumers. Nalick opposed the request. 

The court agreed to reconsider its ruling, and the parties submitted 

supplemental briefs. In connection with the class claims, Seagate argued 

Nalick presented no admissible evidence regarding consumer expectations of 

AFR’s. It argued he merely disputed Seagate’s evidence, which was 

insufficient to raise a triable issue. Rather, Seagate contended, Nalick was 

3 The trial court also denied Seagate’s summary judgment motion as to 

Nalick’s individual claims. However, we do not address that portion of the 

ruling because it is not at issue on appeal.
9

required to introduce evidence that consumers considered an AFR of 

1 percent to be material. 

Conversely, Nalick asserted Seagate had not carried its burden because 

it failed to reference proof of materiality or Simonson’s declaration in its 

separate statement. Nalick further asserted Simonson’s survey was 

problematic and did not support his conclusions, and Nalick provided 

sufficient evidence of materiality so as to raise a triable issue of fact. 

On reconsideration, the trial court granted Seagate’s motion for 

summary adjudication of the class claims. Specifically, the trial court 

reconsidered its conclusion that a dispute of material fact existed regarding 

the products’ heightened AFR’s and Seagate’s knowledge of such AFR’s. 

First, the court noted it properly exercised its discretion to consider 

Simonson’s declaration, despite its absence from the separate statement, 

because it was referenced in Seagate’s opening brief and Nalick directly 

responded to the evidence. Next, the court affirmed its prior conclusion that 

Seagate carried its initial burden, noting, “The fact that a jury may reject Dr. 

Simonson’s testimony does not render his opinion inadmissible or otherwise 

insufficient to satisfy Seagate’s initial burden.” Finally, the court reversed its 

prior ruling that the Klein testimony was sufficient to carry Nalick’s burden 

because Klein did not present evidence regarding what level AFR would be 

material to a reasonable consumer. 

The trial court then assessed the Boedeker and Elerath declarations4 to 

determine whether they sufficed to carry Nalick’s burden. On the question of 

4 The Boedeker declaration was an exhibit to his deposition testimony, 

which was taken in a parallel federal case, and included in this matter via an 

attorney declaration. Our reference to Boedeker’s declaration includes both 

his declaration and his deposition testimony.
10

materiality, the court noted Boedeker’s declaration was admissible evidence 

that an AFR as low as 3 percent was material to a reasonable consumer. The 

court noted: “Boedeker used his survey data to analyze annualized failure 

rates between 1% and 10% through interpolation. [Citation.] Seagate has 

never argued or shown that Boedeker’s application of interpolation was 

improper. Moreover, evidence that consumers would have paid less for a 

product if one attribute of the product were changed is evidence that the 

attribute is material.” 

Turning to the question of Seagate’s heightened knowledge, the court 

first noted Seagate’s evidence did not demonstrate knowledge of a failure rate 

above 3 percent. The court then determined Elerath’s declaration did not 

carry Nalick’s burden because “even construing Dr. Elerath’s declarations 

liberally they do not contain a reasoned explanation connecting the factual 

predicates to the ultimate conclusions.” The court thus granted summary 

adjudication of Nalick’s class claims. 

Nalick subsequently appealed from the court’s order. 

II. DISCUSSION

Nalick contends the trial court improperly granted summary 

adjudication of the class claims because he adequately raised triable issues of 

material fact regarding Seagate’s duty to disclose allegedly higher AFR’s for 

those hard drives at issue. We agree and reverse.

A. Standard of Review

“ ‘Summary adjudication motions are “procedurally identical” to 

summary judgment motions. [Citation.] A summary judgment motion “shall 

be granted if all the papers submitted show that there is no triable issue as to 

any material fact and that the moving party is entitled to a judgment as a 

matter of law.” [Citation.] To be entitled to judgment as a matter of law, the 
11

moving party must show by admissible evidence that the “action has no merit 

or that there is no defense” thereto. [Citation.] A defendant moving for 

summary judgment meets this burden by presenting evidence demonstrating 

that one or more elements of the cause of action cannot be established or that 

there is a complete defense to the action. [Citations.] Once the defendant 

makes this showing, the burden shifts to the plaintiff to show that a triable 

issue of material fact exists as to that cause of action or defense. [Citations.] 

Material facts are those that relate to the issues in the case as framed by the 

pleadings. [Citation.] There is a genuine issue of material fact if, and only if, 

the evidence would allow a reasonable trier of fact to find the underlying fact 

in favor of the party opposing the motion in accordance with the applicable 

standard of proof.’ ” (Duffey v. Tender Heart Home Care Agency, LLC (2019) 

31 Cal.App.5th 232, 240–241 (Duffey).)

“ ‘The trial court’s ruling on a motion for summary adjudication, like 

that on a motion for summary judgment, is subject to this court’s 

independent review.’ [Citation.] ‘In performing our review, we view the 

evidence in a light favorable to the losing party . . . , liberally construing [his]

evidentiary submission while strictly scrutinizing the moving party’s own 

showing and resolving any evidentiary doubts or ambiguities in the losing 

party’s favor.’ ” (Duffey, supra, 31 Cal.App.5th at p. 241.) The court does not 

weigh evidence, but instead considers whether the evidence creates a triable 

issue of fact. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 

113.) 

B. Expert Declarations

“ ‘[A]n expert declaration is admissible to support or defeat summary 

judgment if the expert’s testimony would be admissible at trial in accordance 

with Evidence Code section 720. An expert may testify to an opinion on a 
12

subject “that is sufficiently beyond common experience that the opinion of an 

expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)’ ” 

(Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779 (Fernandez).) 

“ ‘The same rules of evidence that apply at trial also apply to the 

declarations submitted in support of and in opposition to motions for 

summary judgment. Declarations must show the declarant’s personal 

knowledge and competency to testify, state facts and not just conclusions, and 

not include inadmissible hearsay or opinion.’ ” (Fernandez, supra, 

31 Cal.App.5th at p. 779.) Pursuant to Evidence Code section 801, a trial 

court acts as a gatekeeper and should exclude any expert opinion that is 

based upon assumptions of fact without evidentiary support, or which involve 

guesses or surmises. (Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 770 (Sargon).) Evidence Code section 802 

permits a court to inquire into both the type of material on which an expert 

relies and whether that material actually supports the expert’s reasoning. 

(Sargon, at p. 771.) In exercising its role as a gatekeeper, the trial court 

should exclude expert opinion testimony “that is (1) based on matter of a type 

on which an expert may not reasonably rely, (2) based on reasons 

unsupported by the material on which the expert relies, or (3) speculative.” 

(Id. at pp. 771–772; Fernandez, at p. 782 [liberal construction does not 

“eliminate the need for some form of ‘reasoned explanation,’ and it remains 

the case that any inferences must ‘reasonably be derived from’ the 

declaration”].) The trial court’s focus should be “ ‘solely on principles and 

methodology, not on the conclusions that they generate.’ ” (Sargon, at 

p. 772.) 
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An appellate court reviews for abuse of discretion a trial court’s ruling 

excluding or admitting expert testimony. (Sargon, supra, 55 Cal.4th at 

p. 773.)

C. Seagate’s Motion for Summary Judgment or, Alternatively, 

Summary Adjudication

Nalick asserts the trial court erred in granting Seagate’s motion on two 

grounds. First, Nalick contends the trial court improperly interpreted 

Daugherty, supra, 144 Cal.App.4th 824, as barring any omissions liability 

after the expiration of the warranty period. Second, Nalick contends his 

submitted evidence regarding materiality, Seagate’s knowledge, and 

Seagate’s representations regarding reliability adequately created genuine 

issues of material fact sufficient to defeat summary judgment. 

1. Duty to Disclose Under the CLRA and UCL

Civil Code section 1770, subdivision (a) makes unlawful certain “unfair 

methods of competition and unfair or deceptive acts or practices undertaken 

by any person in a transaction intended to result or that results in the sale or 

lease of goods or services to any consumer . . . .” (See Daugherty, supra, 

144 Cal.App.4th at p. 833.) A deceptive act includes the misrepresentation or 

omission of a material fact. (McAdams v. Monier, Inc. (2010) 182 Cal.App.4th 

174, 185.) For an omission to be actionable under the CLRA, it must be 

contrary to a representation actually made by the defendant, or the 

defendant must have had a duty to disclose the omitted fact. (Daugherty, at 

p. 835.) Moreover, the plaintiff asserting a CLRA claim must show the 

misrepresentation or omission was likely to deceive a reasonable consumer. 

(Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 

1361–1362.)

Similarly, “[c]onduct violating the UCL includes ‘any unlawful, unfair 

or fraudulent business act or practice . . . .’ (Bus. & Prof. Code, § 17200.) By 
14

proscribing unlawful business practices, the UCL borrows violations of other 

laws and treats them as independently actionable. In addition, practices may 

be deemed unfair or deceptive even if not proscribed by some other law.” 

(Daugherty, supra, 144 Cal.App.4th at p. 837.) “ ‘A business practice is 

“fraudulent” within the meaning of [the UCL] if it is “likely to deceive the 

public. [Citations.] It may be based on representations to the public which 

are untrue, and ‘ “also those which may be accurate on some level, but will 

nonetheless tend to mislead or deceive. . . . A perfectly true statement 

couched in such a manner that it is likely to mislead or deceive the consumer, 

such as by failure to disclose other relevant information, is actionable 

under” ’ the UCL. [Citations.] The determination as to whether a business 

practice is deceptive is based on the likely effect such practice would have on 

a reasonable consumer.” ’ ” (Rubenstein v. The Gap, Inc. (2017) 

14 Cal.App.5th 870, 876–877.) “ ‘[A] business practice is “unfair” if (1) the 

consumer injury is substantial; (2) the injury is not outweighed by any 

countervailing benefits to consumers or competition; and (3) the injury could 

not reasonably have been avoided by consumers themselves.’ ” (Id. at p. 880.)

Seagate contends Daugherty bars any omissions-only theory of liability 

in the absence of a defect, safety risk, or affirmative misrepresentation. In 

Daugherty, supra, 144 Cal.App.4th 824, the Second Appellate District 

addressed whether American Honda Motor Co., Inc. (Honda) had a duty to 

disclose an engine defect that could cause an oil leak malfunction. The court 

explained, “although a claim may be stated under the CLRA in terms 

constituting fraudulent omissions, to be actionable the omission must be 

contrary to a representation actually made by the defendant, or an omission 

of a fact the defendant was obliged to disclose.” (Id. at p. 835.) The court 

first noted the plaintiff did not allege any representation regarding the 
15

engine apart from its express warranties, and the engine “functioned as 

warranted.” (Id. at pp. 836, 835.) Next, the court rejected the plaintiff’s 

argument that Honda had a duty to disclose because it knew of 

“ ‘unreasonable risk.’ ” (Id. at p. 836.) The court explained the 

“ ‘unreasonable risk’ alleged is merely the risk of ‘serious potential 

damages’—namely, the cost of repairs . . . . The complaint is devoid of factual 

allegations showing any instance of physical injury or any safety concerns 

posed by the defect.”

5

 (Daugherty, at p. 836.)

Contrary to Seagate’s position, Daugherty did not bar omissions-only 

theories. Rather, Daugherty explained, as a general rule, a manufacturer 

cannot be liable for a failure to disclose unless such omission (1) is “contrary 

to a representation actually made by the defendant” or (2) pertains to a “fact 

the defendant was obliged to disclose.” (Daugherty, supra, 144 Cal.App.4th 

at p. 835.) Courts have uniformly applied this general rule.6 (See, e.g., 

5 The court also rejected the UCL claim because the alleged failure to 

disclose did not involve a fact Honda was required to disclose because the 

only expectation Honda’s buyers could have was that the engine would 

function for the length of Honda’s express warranty. (Daugherty, supra, 

144 Cal.App.4th at p. 838.) It also rejected the UCL claim on the “unlawful” 

and “unfair” prongs because there was no underlying statutory violation and 

the alleged injury to consumers is not substantial. (Daugherty, at pp. 837, 

839.)

6 Some federal courts have disagreed amongst themselves on whether 

the rule should be applied to claims arising after the expiration of a warranty 

period. (Compare Daniel v. Ford Motor Co. (E.D.Cal. May 18, 2016, Civ. 

No. 2:11-02890 WBS EFB) 2016 WL 2899026 at p. *2 [test applies to defects 

that manifest after expiration of the warranty period] with Williams v. 

Yamaha Motor Co. Ltd. (9th Cir. 2017) 851 F.3d 1015, 1029 [“the fact that 

the alleged defect concerns premature, but usually post-warranty, onset of a 

natural condition raises concerns about the use of consumer fraud statutes to 

impermissibly extend a product’s warranty period”].)
16

Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234,

1258 (Gutierrez); Rubenstein v. The Gap, Inc., supra, 14 Cal.App.5th at 

p. 881.) In fact, the two other cases cited by Seagate, Bardin v. 

DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255 (Bardin) and Buller v. 

Sutter Health (2008) 160 Cal.App.4th 981, both recognize the viability of 

omission-based claims when there exists a duty to disclose. In Bardin, 

however, the court rejected the UCL and CLRA claims because the complaint 

failed to allege facts showing defendant was “ ‘bound to disclose’ ” its use of 

tubular steel exhaust manifolds because customers had no expectation or 

assumption regarding the materials used by the defendant. (Bardin, at 

pp. 1275–1276.) Similarly, in Buller, the court explained the complaint did 

not allege the defendants had an affirmative duty to disclose the availability 

of a discount because patients are unlikely to expect such discounts. (Buller, 

at p. 988.)

The question before this court is thus whether Seagate had a duty to 

disclose the allegedly higher failure rates of its drives. Courts are split as to 

whether the duty to disclose requires a “safety hazard” showing. The Ninth 

Circuit, in Wilson v. Hewlett-Packard Co. (9th Cir. 2012) 668 F.3d 1136,

7

commented that unless liability for failure to disclose a defect is limited to 

unreasonable safety risks, “the ‘[f]ailure of a product to last forever would 

become a “defect,” a manufacturer would no longer be able to issue limited 

warranties, and product defect litigation would become as widespread as 

manufacturing itself.’ ” (Wilson, at pp. 1141–1142.) Daugherty also implicitly 

adopted the safety hazard position as to claims arising from an alleged duty 

7 While federal cases interpreting state law are persuasive, they are, of 

course, not binding on this court. (9 Witkin, Cal. Procedure (5th ed. 2020) 

Appeal, § 507.)
17

to disclose when it noted, “The complaint is devoid of factual allegations 

showing any instance of physical injury or any safety concerns posed by the 

defect.” (Daugherty, supra, 144 Cal.App.4th at p. 836.) 

However, two post-Daugherty California Court of Appeal cases—

Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164 (Rutledge) and 

Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249 (Collins)—cast doubt 

on whether plaintiffs must identify a “safety hazard” to state a claim for 

failing to disclose. These cases instead focus on whether the defect is 

“material” and central to the product’s functionality. In Collins, the plaintiffs 

filed a class action alleging the defendant failed to disclose a microchip defect, 

which resulted in the computers improperly writing data to, and reading data 

from, floppy disks and related data corruption. (Collins, at p. 253.) In 

addressing whether the complaint stated claims for violating both the CLRA 

and UCL, the court explained “deceptive practices . . . include the 

concealment or suppression of material facts” because they encompass, in 

part, “the suppression of a fact by one who is bound to disclose it.” (Collins,

at p. 255.) The court further explained “a fact is deemed ‘material,’ and 

obligates an exclusively knowledgeable defendant to disclose it, if a 

‘ “reasonable [consumer]” ’ would deem it important in determining how to 

act in the transaction at issue.” (Id. at p. 256.) The Collins court concluded 

the plaintiffs sufficiently alleged the materiality of the microchip defect 

because “the floppy disk was central to the function of a computer as a 

computer.” (Id. at p. 258.) 

Likewise, in Rutledge, a class action was brought alleging HewlettPackard Co. (HP) manufactured certain notebook computers containing 

inverters that HP “knew would likely fail and cause display screens to dim 

and darken at some point before the end of the notebook’s useful life.” 
18

(Rutledge, supra, 238 Cal.App.4th at p. 1168.) The plaintiffs argued “HP had 

a duty to disclose the material fact that the inverters were defective in 

manufacturing and installation” because “consumers expect a notebook 

computer to be portable, and a properly working display screen is essential to 

the notebook’s portability.” (Id. at p. 1173.) In response, HP argued 

manufacturers do not have a duty to disclose “a product defect absent an 

unreasonable risk of ‘physical injury or safety concerns,’ ” which was not 

present. (Id. at pp. 1173–1174.) The court rejected HP’s argument. 

Although the HP computers did not immediately malfunction like those in 

Collins, the plaintiffs alleged the “inverters were defective in manufacturing 

and installation at the time the notebooks were sold” and thus were 

“ ‘substantially certain to fail’ ” at some point in the future. (Rutledge, at 

p. 1175.) The plaintiffs sufficiently alleged this defect to be “material, 

because it affected the performance of the display screens of notebook 

computers.” (Ibid.)

Both Collins and Rutledge emphasized “neither Daugherty nor Bardin

preclude a duty to disclose material information known to a manufacturer 

and concealed from a consumer.” (Rutledge, supra, 238 Cal.App.4th at 

p. 1174; accord Collins, supra, 202 Cal.App.4th at p. 258.) Rather, these 

cases found Daugherty and Bardin distinguishable as involving nonmaterial 

defects. They noted the engine defect in Daugherty was due to normal use 

and wear and did not manifest, if at all, until long after the warranty limits. 

(Collins, at pp. 256–257; Rutledge, at p. 1175.) Collins likewise distinguished 

Bardin by noting “the composition of the exhaust manifolds was an 

insignificant matter” and consumers had no expectations about the 

composition. (Collins, at p. 257; Rutledge, at p. 1175.) 
19

There are certainly points of distinction between the present case and 

Rutledge and Collins. Collins, in particular, involved computers that were 

never complete and operational due to the alleged microchip defect at the 

time they were sold. (Collins, supra, 202 Cal.App.4th at p. 257.) But these 

cases provide important guidance on when a defendant may be subject to a 

duty to disclose.

In Hodsdon v. Mars, Inc. (9th Cir. 2018) 891 F.3d 857 (Hodsdon), the 

Ninth Circuit summarized the holdings in Rutledge and Collins, noting those 

cases sanctioned an “omission claim when: the plaintiff alleges that the 

omission was material; second, the plaintiff must plead that the defect was 

central to the product’s function; and third, the plaintiff must allege one of 

the four LiMandri[8]factors.” (Hodsdon, at p. 863, citing Collins, 

202 Cal.App.4th at pp. 255–256.) The LiMandri factors are as follows:

“ ‘(1) when the defendant is in a fiduciary relationship with the plaintiff; 

(2) when the defendant had exclusive knowledge of material facts not known 

to the plaintiff; (3) when the defendant actively conceals a material fact from 

the plaintiff; and (4) when the defendant makes partial representations but 

also suppresses some material facts.’ ” (LiMandri, supra, 52 Cal.App.4th at

p. 336.) The Hodsdon court relied on these opinions to conclude an omission 

only needed to relate to the central functionality of the products rather than 

constitute a safety hazard. (Hodsdon, at p. 863.) Recently, the Fifth 

Appellate District acknowledged omissions of material fact are actionable 

under the CLRA and UCL. (See Gutierrez, supra, 19 Cal.App.5th at pp. 1258, 

1266.) The Gutierrez court considered whether the duty to disclose safety 

concerns constituted an additional, “independent duty of disclosure,” but 

8 LiMandri v. Judkins (1997) 52 Cal.App.4th 326 (LiMandri).
20

ultimately concluded it was merely “a specific application of the duty to 

disclose” when one of the LiMandri factors are met. (Gutierrez, at pp. 1258, 

1260.) 

We follow Collins, Rutledge, and Hodsdon in concluding omission 

claims are viable provided they relate to the product’s central functionality. 

However, we are cognizant of the concerns about undermining warranties 

and thus emphasize the necessary limits in assessing whether a defect is 

central to functionality. Collins, for example, allowed claims to proceed based 

on allegations that a chip error resulted in corrupting data on the user’s 

floppy disk. (Collins, supra, 202 Cal.App.4th at p. 258.) In Rutledge, laptop 

screens failed entirely, thus requiring them to be connected to an external 

monitor and undermining the portability of laptops. (Rutledge, supra, 

238 Cal.App.4th at p. 1175.) In both instances, the defects either totally or 

significantly impacted the product’s primary use. Conversely, the Northern 

District of California concluded a failure to include fans and vents in certain 

computers, resulting in debris causing permanent dark smudging on screens, 

was not central to a computer’s functionality. (Ahern v. Apple Inc. (N.D.Cal. 

2019) 411 F.Supp.3d 541, 568.) Likewise, security vulnerabilities in a 

microprocessor did not give rise to a duty to disclose because “the allegations 

do not go to the central functionality of a microprocessor and do not show that 

the chips were incapable of use.” (In re Intel Corp. CPU Mktg., Sales 

Practices & Prod. Liab. Litig. (D.Or. Mar. 27, 2020, No. 3:18-md-2828-SI) 

2020 WL 1495304 at p. *17.) 

Here, the alleged defect is the premature failure of the hard drives. 

Seagate does not appear to contend the drives that prematurely fail have any 

remaining functionality. Accordingly, the alleged high rate of premature 

failure goes to the heart of the drive’s functionality. Nalick’s pre- and 
21

postwarranty claims may proceed provided he can meet the LiMandri test 

and demonstrate materiality and exclusive knowledge by Seagate.9

With regard to the LiMandri test, Nalick argues he can demonstrate a 

duty to disclose arising from partial representations made by Seagate. 

Seagate disagrees, arguing the trial court did not certify class claims based 

on affirmative misrepresentations. Undoubtedly, the class certification order 

expressly limited class claims to those “based on omissions.” However, 

omissions claims—i.e., those based on a failure to disclose—can encompass 

situations “when the defendant makes partial representations that are 

misleading because some other material fact has not been disclosed.” 

(Collins, supra, 202 Cal.App.4th at p. 255, citing LiMandri, supra, 

52 Cal.App.4th at p. 336; see also Gutierrez, supra, 19 Cal.App.5th at p. 1260; 

Hodsdon, supra, 891 F.3d at p. 863.) And the trial court’s class certification 

order acknowledged as much by restating Nalick’s omission-based theory of 

liability as follows: “ ‘[P]roof of liability turns on whether the average 

consumer purchasing the Drive would be likely to be deceived by Seagate’s 

representations about the Drives’ reliability and its omission of the Drives’ 

failure rates. Because Seagate uniformly concealed the true failure rates of 

the Drive—while prominently featuring the Drive’s reliability on its website, 

9 Seagate also argues any claims arising during the warranty period 

should be barred because, unlike in Daugherty, Nalick did not assert any 

claim based on the language of Seagate’s warranty. But Seagate does not cite 

any authority to support its position that the CLRA and UCL cannot 

encompass claims arising during a warranty period. To the contrary, the fact 

that claims occurred during the warranty period was an express factor in the 

Collins court decision. (See Collins, supra, 202 Cal.App.4th at p. 257 [“The 

complaint before us is unlike Daugherty because it does not attempt an endaround the warranty laws. In the complaint, plaintiffs allege: ‘Both named 

Plaintiffs suffered data loss and missing files when using their floppy disk 

drive, during and before the warranty expired.’ ”].)
22

in its marketing, and on its boxes—the Class was exposed to the same 

deceptive course of conduct.’ ” (Italics added.) While the trial court did not 

certify class claims based on a latent defect or affirmative misrepresentation, 

nothing in its order limited how Nalick may prove his omissions-based 

claims.

2. Materiality and Exclusive Knowledge

We next turn to whether the record reflects a genuine issue of material 

fact regarding at what level AFR’s become material and whether Seagate had 

exclusive knowledge of such AFR’s. 

Expert declarations opposing summary judgment must be “ ‘liberally 

construed.’ ” (Fernandez, supra, 31 Cal.App.5th at p. 779.) However, a 

liberal construction does not “eliminate the need for some form of ‘reasoned 

explanation,’ and it remains the case that any inferences must ‘reasonably be 

derived from’ the declaration.” (Id. at p. 782.) Trial courts may inquire into 

both the type of material on which an expert relies and whether that material 

actually supports the expert’s reasoning. (Sargon, supra, 55 Cal.4th at

p. 771.) The trial court’s focus should be “ ‘solely on principles and 

methodology, not on the conclusions that they generate.’ ” (Id. at p. 772.) An 

appellate court reviews for abuse of discretion a trial court’s ruling excluding 

or admitting expert testimony. (Id. at p. 773.)

Nalick does not dispute the trial court’s holding that Seagate met its 

initial burden by showing a reasonable consumer would not find any 

difference between an AFR of less than 1 percent and an AFR of 8 percent. 

Rather, Nalick asserts the evidence he presented creates a genuine issue of 

material fact as to whether failure rates in excess of 1 percent were material 

to a reasonable consumer. 
23

Nalick first argues industry standards and Seagate’s own reliability 

specifications for hard disk drives require an AFR of 1 percent or less. While 

possibly true, we agree with the trial court that evidence regarding industry 

standards for AFR’s and Seagate’s reliability specifications do not alone 

provide evidence of consumer expectations. Likewise, we agree with the trial 

court that Nalick’s criticism of the methodology Seagate used in its consumer 

study to conclude an 8 percent AFR was immaterial to consumers does not, 

by itself, provide evidence of what AFR would be material to a reasonable 

consumer. 

However, we disagree in part with the trial court’s interpretation of 

Boedeker’s declaration. The trial court noted Boedeker’s opinions were based 

on a consumer survey, data from which was used to quantify the drop in 

consumer demand for hard drives with heightened AFR’s. The court further 

noted the lowest AFR for which Boedeker offered a quantitative opinion on 

economic loss was 3 percent, and it thus determined his declaration 

demonstrated “an [AFR] of as low as 3% is material to a reasonable 

consumer, but is not evidence of materiality as to any lower annual failure 

rate.” In reaching its conclusion, the trial court rejected Seagate’s argument 

that Boedeker did not measure the materiality of AFR’s. It noted Boedeker’s 

survey addressed AFR’s at various increments, Boedeker used this data to 

analyze AFR’s “between 1% and 10% through interpolation,” Boedeker’s 

method of interpolation was appropriate, and “evidence that consumers 

would have paid less for a product if one attribute of the product were 

changed is evidence that the attribute is material.” 

The trial court did not abuse its discretion in concluding Boedeker’s 

declaration was admissible and affirming his methodology to show evidence 

of materiality. (See Sargon, supra, 55 Cal.4th at p. 772.) Nor does Seagate 
24

assert the trial court abused its discretion in doing so. However, the trial 

court exceeded its role by adopting its own interpretation of Boedeker’s 

conclusions. (See ibid.) The trial court provided no explanation for its

determination that only AFR’s at or above 3 percent are material. Perhaps

the trial court utilized 3 percent because that was the lowest AFR for which 

Boedeker provided a quantitative number for economic loss. However, 

Boedeker’s declaration did not conclude an AFR of 3 percent was the first 

level at which consumers would experience economic loss. To the contrary, 

Boedeker expressly stated “the model can be further refined to enable the

quantification of economic losses for different interim AFRs,” including “the 

specification of economic losses for all incremental AFRs between 1% and 

50%.” Boedeker’s declaration thus indicates consumers experience some 

degree of economic loss for AFR’s above 1 percent, and—per the methodology 

approved by the trial court—that economic loss corresponds to a degree of 

materiality. Additionally, Boedeker found “the [AFR] is by far the most 

important attribute” for survey participants. While a jury may ultimately 

conclude only a certain level of economic loss evidences materiality, we must 

interpret Boedeker’s declaration liberally. (See Fernandez, supra,

31 Cal.App.5th at p. 779.) Accordingly, Boedeker’s declaration provides 

sufficient evidence of materiality for AFR’s above 1 percent to raise a genuine 

issue of material fact. 

Because Nalick has offered evidence to raise a genuine issue of 

material fact as to whether AFR’s over 1 percent are material, we need not 

resolve the parties’ dispute regarding Elerath’s declaration. Putting aside 

Elerath’s declaration, the record contains sufficient evidence to raise a factual

dispute regarding whether Seagate had knowledge of hard drives with AFR’s

over 1 percent. As noted by the trial court in its initial order on summary 
25

judgment, the Trane and Ng declarations submitted by Seagate “identify 

return rates that were in excess of 1% per year over the first two years, even, 

in Trane’s case, when ‘No Trouble Found’ and ‘Could Not Duplicate’ returns 

are excluded.” The trial court’s initial order thus correctly determined “a 

trier of fact presented with Seagate’s evidence could conclude that at least 

some of the drive families at issue here had AFR’s in excess of 1% and that 

Seagate knew of those AFR’s as a result of return data.” 

In sum, Boedeker’s declaration sufficiently raises a triable issue as to 

whether AFR’s over 1 percent are material to a reasonable consumer, and 

Seagate’s own evidence raises a triable issue as to whether it had knowledge 

of AFR’s above 1 percent. Together, Nalick has adequately disputed 

Seagate’s motion for summary adjudication of the class claims.

III. DISPOSITION

The trial court’s order granting summary adjudication is reversed, and 

the matter is remanded for further proceedings consistent with this opinion. 

Plaintiff Scott Nalick may recover his costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(1), (2).)
26

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

SANCHEZ, J.

A158237

Nalick v. Seagate Technology LLC