(Breach Of Express Warranty)   (Breach Of The Implied Warranty Of Merchantability)   (Breach Of Implied Warranty Of Fitness For A Particular Purpose)   (Unjust Enrichment)   (Violation Of The Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq.)   (Violation Of California’s Consumers Legal Remedies Act (“CLRA”),   Civil Code § 1750, et seq.)   (Violation Of California’s False Advertising Law,   Cal. Bus. & Prof. Code §§ 17500, et seq.  113.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.  114.  Plaintiff brings this Count VIII individually and on behalf of the members of the  California Subclass against all Defendants.  115.  California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq.  (“FAL”), makes it “unlawful for any person to make or disseminate or cause to be made or  disseminated before the public in this state, ... in any advertising device ... or in any other manner  or means whatever, including over the Internet, any statement, concerning ... personal property or  services, professional or otherwise, or performance or disposition thereof, which is untrue or  misleading and which is known, or which by the exercise of reasonable care should be known, to  be untrue or misleading.”  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page29 of 37 29  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  (Violation Of The Song-Beverly Consumer Warranty Act,  Civil Code § 1790 et seq.)  120.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.  121.  Plaintiff brings this Count IX individually and on behalf of the members of the  California Subclass against all Defendants.  122.  Plaintiff Smith and the members of the California Subclass are “retail buyers”  within the meaning of Section 1791(b) of the California Civil Code.  123.  Defendants’ Defective Washing Machines are “consumer goods” within the  meaning of Section 1791(a) of the California Civil Code.   Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page30 of 37 30  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  (Violation Of The Unfair Competition Law,   Cal. Bus. & Prof. Code § 17200, et seq.)  104.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.  105.  Plaintiff brings this Count VII individually and on behalf of the members of the  California Subclass against all Defendants.  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page27 of 37 27  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  15.  The Defective Washing Machines include six models of automatic washing  machines manufactured by Defendant LG: LG brand WT5001CW, WT5101HV, and WT5101HW,  and Kenmore Elite brand models 29002, 29272, and 29278.  The washing machines are a top-load  style manufactured in beige, white and graphite colors.    16.  Defendant LG manufactured, produced, and/or distributed the Defective Washing  Machines to several leading retailers including Home Depot, Sears, Kmart, and Best Buy.   17.  Three of the defective models were sold under the Kenmore brand name.   Kenmore  is a brand of household appliances established by Sears, and sold exclusively at Sears and Kmart.  Kenmore products bear the Kenmore brand label, but are produced by various third-party  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page6 of 37 6  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  50.  Plaintiff seeks to represent a class defined as all persons in the United States who  purchased a Defective Washing Machines (the “Class”).  Excluded from the Class are persons who  made such purchase for purpose of resale.    51.  Plaintiff also seeks to represent a subclass of all Class Members who have  purchased the Defective Washing Machines in California (the “California Subclass”).   52.  Members of the Class and Subclass are so numerous that their individual joinder  herein is impracticable.  Defendants sold approximately 457,000 units of the Defective Washing  Machines between 2010 and 2012.  The precise number of Class and Subclass Members and their  identities are unknown to Plaintiff Smith at this time but may be determined through discovery.   Class members may be notified of the pendency of this action by mail and/or publication through  the distribution records of Defendants and third party retailers and vendors.  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page16 of 37 16  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  58.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page18 of 37 18  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  68.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.   69.  Plaintiff brings this Count II individually and on behalf of the members of the Class  against all Defendants.    70.  In connection with the sale of the Defective Washing Machines, Defendants issued  written Express Warranties.  Defendants, as the designers, manufacturers, marketers, distributors,  or sellers expressly warranted that the Defective Washing Machines were fit for their intended  purpose as High Efficiency washing machines by making the Express Warranties to Plaintiff and  the Class.  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page20 of 37 20  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  74.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.   75.  Plaintiff brings this Count III individually and on behalf of the members of the Class  against all Defendants.    76.  Defendants are “merchants” as to the Defective Washing Machines within the  meaning of the Uniform Commercial Code (“UCC”).  Defendants manufactured, distributed and  marketed the Defective Washing Machines, which are “goods” within the meaning of the UCC.  Consequently, Defendants impliedly warranted that the Defective Washing Machines were  merchantable, including that they could pass without objection in the trade under the contract  description, that they were fit for the ordinary purposes for which such goods are used, that they  were of fair average quality within the description, that they were adequately labeled, and that they  would conform to the promises or affirmations of fact made on their containers or labels.   However, each of these implied warranties was false.   77.  In reliance on Defendants’ skill and judgment and the implied warranties of fitness  for the purpose, Plaintiff and Class Members purchased the Defective Washing Machines for use  as residential washing machines.    78.  The Defective Washing Machines were not altered by Plaintiff and Class Members.   79.  The Defective Washing Machines were defective when they left the exclusive  control of Defendants.   80.  Defendants knew the Defective Washing Machines would be purchased and used  without additional testing for efficacy by Plaintiff and Class Members.   81.  The Defective Washing Machines were defectively designed and unfit for their  intended purpose, and Plaintiff and Class Members did not receive the goods as warranted.   Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page22 of 37 22  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  84.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.   85.  Plaintiff bring this Count IV individually and on behalf of the members of the Class  against all Defendants.  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page23 of 37 23  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  90.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.   91.  Plaintiff brings this Count V individually and on behalf of the members of the Class  against all Defendants.  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page24 of 37 24  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  96.  Plaintiff hereby incorporates by reference the allegations contained in all preceding  paragraphs of this complaint.   97.  Plaintiff brings this Count VI individually and on behalf of the members of the  California Subclass against all Defendants.    98.  In connection with the sale of the Defective Washing Machines, Defendants  represented that the Defective Washing Machines: (i) “will provide many years of reliable service”;  (ii) “[are] designed and manufactured for years of dependable service”; (iii) were capable of  operating “extra high” spin speed cycles at the advertised 1050-1100 RPMs; (iv) were Energy  Case4:13-cv-04361-DMR   Document1   Filed09/19/13   Page25 of 37 25  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  The Defective Washing Machines  