Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE JAMES V. SELNA, District Judge. Table of Contents I. Factual Allegations......................................................1156 II. Article III Standing......................................................1160 A. A Manifested SUA Defect Is Not Necessary for Standing.................1161 B. Pleading a Cognizable Loss under a “Benefit of the Bargain” Theory.... 1164 C. Lead Plaintiffs Must Plead a Cognizable Loss under a “Benefit of the Bargain” Theory..................................................1166 D. The Warranties Do Not Preclude Standing.............................1167 E. Conclusion for Article III Standing....................................1168 III. Standing to Assert UCL, FAL, and CLRA Claims...........................1168 IV. Rule 12(b)(6) and Rule 12(f) Standards.....................................1169 A. Motion to Dismiss Pursuant to Rule 12(b)(6) ...........................1169 B. Motion to Strike Pursuant to Rule 12(f)................................1169 V. Plaintiffs’ CLRA UCL, and FAL Claims (First, Second, and Third Causes of Action).............................................................1170 A. Heightened Pleading Standard Under Rule 9(b).........................1170 1. Generalized Statements...........................................1171 2. Specific Defect Allegations........................................1171 B. CLRA Claims......................................... 1172 1. Material Facts ..................................................1173 2. Exclusive Knowledge and Active Concealment.......................1174 3. Damages........................................................1174 C. UCL Claims........................................................1175 D. FAL Claims.................................... 1176 E. Motion to Strike CLRA and UCL Claims...............................1177 VI. Express and Implied Warranties (Fourth and Fifth Causes of Action) .........1177 A. Express Written Warranty ...........................................1177 1. Terms..........................................................1177 2. Limited Remedy of Repair or Adjustment ..........................1178 3. Requirement of Presentment for Repair Within the Warranty Period and Requirement of Notice Before Filing Suit ..............1178 a. Contractual Requirement of Presentment for Repair Within the Warranty Period .......................................1178 b. Statutory Requirement of Notice Before Filing Suit..............1180 4. Design Defect as Beyond the Scope of “Materials and Workmanship"................................................1180 5. Unconscionability ...............................................1181 B. Express Warranty Created by Representations in Advertisements.........1182 C. Implied Warranty...................................................1183 1. The Requirement of Privity.......................................1183 a. Exception to Privity Requirement for Third-Party Beneficiaries..............................................1184 b. Exception: Dangerous Instrumentality.........................1185 2. Manifestation of Defect...........................................1186 VII.Breach of Contract/Common Law Warranty Claims (Eighth Cause of Action)...............................................................1186 VIII. Revocation of Acceptance (Sixth Cause of Action)............................1186 IX. Magnuson-Moss Warranty Act (Seventh Cause of Action)....................1188 A. Relation to State Warranty Claims....................................1188 B. Requirement that Consumers Follow Dispute Resolution Process..........1188 X. Fraud by Concealment (Ninth Cause of Action) .............................1189 A. Heightened Pleading Requirement and Elements........................1189 B. Pleading-with-Particularity Requirement of Fed.R.Civ.P. 9(b)............1190 C. Fraudulent Concealment.............................................1191 1. Duty to Disclose.................................................1191 a. Exclusive Knowledge of Material Facts.........................1191 b. Active Concealment ..........................................1192 c. Partial Representations.......................................1193 2. Remaining Fraud Elements.......................................1193 XI. Unjust Enrichment (Tenth Cause of Action) ................................1193 XII. Availability of Injunctive Relief...........................................1194 A. Preemption.........................................................1194 B. Primary Agency Jurisdiction.........................................1199 XIII. Availability of Restitution and/or Restitutionary Disgorgement...............1200 XIV. Remainder of Motion to Strike............................................1200 XV. Conclusion..............................................................1200 This action arises out of plaintiffs’ purchase of vehicles designed, manufactured, distributed, marketed and sold by Defendants Toyota Motor Corporation dba Toyota Motor North America, Inc. (“TMC”), and its subsidiary, Toyota Motor Sales, U.S.A., Inc. (“TMS”) (collectively, “Toyota” or “Defendants”). A putative class of domestic Plaintiffs seeks damages for diminution in the market value of their vehicles in light of acknowledged and/or perceived defects in those vehicles. In the Economic Loss Master Consolidated Complaint (“MCC”) (Docket No. 263), Plaintiffs assert claims under federal law and California law. Specifically, the MCC asserts claims for (1) Violations of the Consumer Legal Remedies Act, Cal. Civ.Code §§ 1750, et seq. (“CLRA”); (2) Violation of the California Unfair Competition Law, Cal. Bus. & Prof.Code §§ 17200, et seq. (“UCL”); (3) Violation of the California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq. (“FAL”); (4) Breach of Express Warranty, Cal. Com. Code § 2318; (5) Breach of the Implied Warranty of Merchantability, Cal. Com. Code § 2314; (6) Revocation of Acceptance, Cal. Com.Code § 2608; (7) Violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301, et seq. (“MMA”); (8) Breach of Contraet/Common Law Warranty; (9) Fraud by Concealment; and (10) Unjust Enrichment. Defendants have, presumably pursuant to Fed. R. 12(b)(1), moved to dismiss the MCC for lack of Article III standing and, pursuant to Fed.R.Civ.P. 12(b)(6), moved to dismiss all claims for failure to state a claim upon which relief can be granted. (Docket No. 329). Additionally, Defendants have moved to strike certain portions of the MCC (Docket No. 328). (See also Defs.’ Mem. of Points and Authorities (Docket No. 332) (in support of both Motions) (hereinafter “Defs.’ Mem.”). Plaintiffs have opposed both motions. (Docket No. 400; see also Defs.’ Reply, Docket No. 450).) I. Factual Allegations From 2001 to the present, Defendants have sold tens of millions of vehicles, including models of Toyota, Lexus, and Scion, in the United States and throughout the world that use a fully electronic throttle control system (“ETCS”). (¶¶ 1, 76.) An ETCS differs from a system using a mechanical throttle. (See ¶ 2.) A mechanical throttle consists of a cable that connects the accelerator pedal and the engine. (Id.) In contrast, an ETCS does not operate with a cable; instead, in place of the cable, there are “complex computer and sensor systems [that] communicate an accelerator pedal’s position to the engine throttle, telling the vehicle how fast it should go.” (Id.) Toyota began installing these electronic control systems in some Lexus models in 1998 and in Camry and Prius models in 2001 and 2002, and in all Toyota-made vehicles by 2006. (Id.) More specifically, Toyota calls its electronic throttle control system the ETCSintelligent, or “ETCS-i.” (¶ 106.) ETCS-i activates the throttle utilizing the command from the driver’s foot that is conveyed electronically from two position sensors in the accelerator pedal, processed in the engine control computer and then transmitted to the throttle. (Id.) Toyota began installing ETCS-i in models of the 1998 Lexus. (Id.) This earliest of version of Toyota’s ETCS included a mechanical link that shut off the throttle. (Id.) In 2001, however, when Toyota redesigned what would become the 2002 Camry, it eliminated the mechanical link in the Camry and other models. (¶ 107.) When it did so, Toyota did not incorporate any type of manual fail-safe mechanism, as other auto manufacturers did. (¶ 108 (citing, e.g., an Audi system that mechanically closed the throttle when the brakes were applied).) Toyota has employed a number of electronic fail-safe strategies to prevent phenomena such as sudden unintended acceleration (“SUA”). (See ¶ 109 (detailing fail-safe strategies employed by Toyota, in-eluding circumstances under which an engine control computer should cause the engine to stall, reduce the throttle capacity by 70-75%, or close the throttle to idle).) Nevertheless, these strategies did not prevent incidents of SUA. (¶ 110; see also ¶ 111 (suggesting other fail-safe methods that could have been employed).) Other makes of vehicles sold in the United States with electronic throttle control systems employ a “brake-override” system that is designed to assign priority to an attempt by the driver to employ the brake notwithstanding any type of command to open the throttle. (¶¶ 18, 247, 250; see also ¶ 248 (“ ‘If the brake and the accelerator are in an argument, the brake wins,’ a spokesman at Chrysler said in describing the systems, which it began installing in 2003.”).) Since as early as 1996, Toyota vehicles have been marketed based on safety. (See generally ¶¶ 81-105.) For example, the ETCS’s debut in the 1998 LEXUS vehicles was marketed as a safety improvement. (¶ 83 (marketed as a safety feature designed to enhance “vehicle control”).) The 2002 Camry was the subject of a press release regarding its “safety and value.” (¶ 84.) In their marketing materials, Toyota tied its improved technology, the ETCS, to improved safety. (See, e.g., ¶¶ 94-97.) Complaints to Toyota and governmental agencies regarding SUA began in 2002. On February 2, 2002, Toyota received its first consumer complaint of a 2002 Camry engine “surging” when the brakes were depressed. Toyota received ten other similar complaints before August 2002. (¶ 114.) A March 2002 internal Toyota document reveals Toyota was unable to discern a cause for the incidents of “surging.” (¶ 115.) In August 2002, Toyota released the first of at least three “Technical Service Bulletins” regarding 2002 and 2003 Camry “surging” to its dealers. (¶ 116.) Toyota did not disclose the existence of these bulletins to consumers. (Id.) On August 31, 2002, Toyota recorded its first warranty claim to correct a throttle problem on a 2002 Camry. (¶ 117.) The following April, in 2003, after a consumer filed with the United States Highway Traffic Safety Administration (“NHTSA”) a report of SUA involving a 1999 Lexus, noting that 36 other complaints regarding “vehicle speed control” in these vehicles had been lodged on NHTSA’s website, NHTSA opened Defect Petition DP03-003. (¶ 118.) Other reports followed, leading NHTSA to describe the problem to be investigated as “throttle control system fails to properly control engine speed resulting in vehicle surge.” (¶ 119.) As revealed by the investigation, complaints of SUA tended to be significantly higher in Toyota vehicles with an ETCS rather than a mechanical throttle system. (¶¶ 4, 122 (referring to an email from a NHTSA investigator from the Office of Defects Investigation (“ODI”) to a Toyota official referring to a 400% difference in “Vehicle Speed” complaints between a specific model with a mechanical throttle and as compared to a later year’s version of the same model with an ETCS); see also ¶ 5 (“Two of the top five categories of injury claims in NHTSA’s Early Warning Reporting Database involved ‘speed control’ issues on the 2007 Lexus ES350 and Toyota Camry.”); ¶ 6 (referring to complaint data lodged with NHTSA), ¶ 9 (referring to “speed control” issues that resulted in death or injury); ¶¶ 124-27 (outlining statistical analyses of publicly available information regarding incidents of SUA in ETCS vehicles).) Nevertheless, after communications regarding the documents to be provided to NHTSA by Toyota, the investigation of DP03-003 was closed without any adverse findings. (¶¶ 130-33.) Incidents of SUA continued to be reported, however, in 2004 and 2005. (¶¶ 134-35.) Two subsequent Defect Petitions, one in 2005 and one in 2006, were investigated and closed without adverse findings. (¶¶ 135^48.) Eventually, pursuant to a congressional investigation, Toyota disclosed that it had received over 37,900 complaints regarding SUA, including five incidents in which dealer service technicians themselves experienced and documented such incidents. (¶¶ 149-54.) In March 2007, a NHTSA investigation regarding 2007 Lexus vehicles in which the floor mat interfered with the “throttle pedal” or “accelerator pedal” was not expanded to include an investigation of ETCS. (¶¶ 155-67.) Instead, Toyota recalled certain optional “All Weather Floor Mats” on these vehicles. (¶ 168.) Two years later, a request to reopen this investigation was denied; the floor mat problem was “suspected” as causing the incident complained of, but the floor mat’s role as a causal factor was not confirmed. (¶¶ 190-95.) Similarly, in early 2008, an investigation of Tacomas and Siennas led to the conclusion that a trim panel on earlier models was responsible for accelerator problems and was remedied with a carpet replacement and retention clip. (¶¶ 177-89.) Eventually, publicity regarding two accidents, led Toyota on September 29, 2009, to announce a floor mat recall involving approximately 3.8 million vehicles. (¶ 202.) One accident was a very high-profile fatal crash, caused by a mis-matched and improperly installed floor mat, and involved an off-duty police officer who was driving a Lexus lent to him by a dealership. (See ¶¶ 196-201). At the time of the floor mat recall, Toyota made statements to the media regarding NHTSA’s supposed confirmation that, once the floor mats were properly installed, no other defect was present in the recalled vehicles. (¶ 205.) Within days, NHTSA clarified its statement in its own press release, stating that its position was that the floor mat recall was simply an interim measure and that it did not correct the underlying defect. (¶ 206.) On the same day that the floor mat recall was made in the United States, Toyota issued a Technical Information Bulletin to foreign Toyota distributors, identifying a procedure to repair “sticky accelerator pedals” and sudden RPM increases and/or sudden acceleration. (¶ 203.) However, no similar bulletins were issued on that day in the United States, and no other steps were taken to address sticky accelerator pedals. (Id.) There was no mention in Toyota’s September 29, 2009, Consumer Safety Advisory of sticky accelerator pedals; instead, the Advisory claimed that the sudden acceleration problem was caused by irregularities in the vehicles’ floor mats. (¶ 204.) Internal communications from around that time reveal, however, that Toyota was aware of sticky accelerator pedal problems in the United States. (¶¶ 209-13.) This defect was described as a mechanical failure in the pedals themselves rather than an ETCS failure. (See e.g., ¶ 213.) Toyota representatives met with NHSTA officials in Washington, D.C., on January 19, 2010, about the problem, and on January 21, 2010, issued the sticky pedal recall, which affected approximately 2.3 million vehicles. (¶ 215.) On January 26, 2010, Toyota suspended sales of a number of models, resuming on February 5, 2010. (¶ 216.) In connection with this recall, NHTSA imposed a $16,375 million civil penalty on Toyota for its failure to inform NHTSA regarding the sticky pedal defect, which Toyota agreed to pay. (¶ 217.) Even after the floor mat and the sticky pedal recalls, however, incidents of SUA persisted, and Plaintiffs allege that “Toyota [continues to [wrongly] [d]eny [ETCS] [djefects,” criticizing Toyota’s testing of component parts and reiterating certain comments made by lawmakers in connection with a congressional investigation. (¶ 219 and subheading D at p. 97; see also ¶ 221 (criticizing Toyota testing of ETCS component parts, which is delegated to suppliers); ¶224 (congressional statement regarding Toyota’s failure to take into account the 400% increase in SUA in ETCS vehicles when compared to non-ETCS vehicles); ¶ 226 (congressional statement criticizing a flawed expert report); ¶ 228 (congressional statement criticizing the apparent attitude that the recalls have solved the SUA problem).) Plaintiffs also detail changes in quality control practices at one Toyota manufacturing plant. (¶¶ 231-35.) Upon receipt of a claim for SUA, Toyota typically rejects any claim of defect and does not inform the claimant of the existence of hundreds or thousands of other, similar claims. (¶ 236.) In one instance, a claimant requested that Toyota address specific questions she had about how it reached its conclusion that her car suffered no defect when she had no floor mat on the drivers’ side; Toyota did not explain its conclusion. (¶¶ 238-41.) Similarly, when confronted with an engineering report attributing an SUA incident to the ETCS, Toyota claimed that “there have been no confirmed or documented reports or findings of any type of computer malfunctions related to the brake/acceleration or electrical systems.” (¶ 242.) Denials were issued even where officers investigating an accident gave the opinion that, given the rough ride and the impact, it was unlikely that the driver continued to manually accelerate the vehicle. (¶ 243.) Additionally, a Toyota official “falsely stated on repeated occasions that ‘the brakes will always override the throttle.’ ” (¶ 244 (internal quotation marks omitted).) Plaintiffs attribute incidents of SUA to any number of specified electronic or mechanical issues, including the ETCS, floor mat interference, and sticky pedals. (¶ 245(l)-(2).) They also claim that SUA incidents may be due to the failure to develop and implement an appropriate fail-safe method (such as a brake-override system) and/or the failure to test and validate vehicle systems properly. (¶ 245(3)(4)). In response to a request for internal Toyota documents by a congressional committee investigated SUA complaints, Toyota identified 37,900 customer contact reports, randomly selected 3,430 of them, and determined that 1,008 of those reports were related to SUA. (¶ 12.) Toyota provided these documents to the congressional committee. (Id.) In the data the committee reviewed, telephone operators on the Toyota customer complaint line, relying on customer reports and information from dealer inspections, identified floor mats or sticky pedals as the cause of only 16% of the SUA incident reports. (¶ 15.) Toyota eventually added a brake-override system as standard equipment in its 2011 model-year vehicles. (¶¶ 18, 251.) On February 22, 2010, Toyota announced that it will provide brake-override systems as a “confidence booster” (rather than a safety recall) on a number of models, but not on all models Plaintiffs claim are subject to the SUA defect. (¶¶ 18, 252-55.) Plaintiffs allege that Toyota officials have acknowledged that the SUA defect has not been completely remedied by the floor mat and “sticky pedal” recalls. (¶ 20 (second-highest ranking North American executive, when asked, stated that recalls will “not totally” solve the SUA problem); see also ¶¶ 21-23 (allegations regarding more generalized acknowledgment of safety failures by Toyota officials).) As a result of publicity regarding the SUA defect, the value of Toyota cars diminished. (¶¶ 24, 256.) Many consumers sought to return their cars out of fear that SUA could occur and cause catastrophic injury or death. (¶ 24.) Toyota has refused to take class members’ vehicles back, and has refused to and cannot provide an adequate repair. (¶¶ 24, 256, 257-59 (providing examples of diminution in value).) The individual Plaintiffs (or “consumer Plaintiffs”) named in the MCC include Plaintiffs who are citizens of California, Illinois, Tennessee, Maryland, Florida, Massachusetts, Ohio, Pennsylvania, Washington, Missouri, Arizona, Iowa, New York, Nevada, Michigan, Colorado, Nebraska and Virginia. (¶¶ 32-69.) Plaintiffs also include an individual who was motivated to buy a Toyota vehicle based upon their reputation for safety. (¶ 41.) Additionally, Plaintiffs include individuals who have experienced SUA, and those who have not experienced SUA but have nevertheless chosen not to use their vehicles since being notified of the potential for SUA. (See, e.g., ¶¶ 32, 37.) They include individuals whose requests for substitute vehicles have been refused, who have been directed by Toyota Customer Experience Center to file a claim with the National Center for Dispute Settlement (only to be informed by the National Center for Dispute Settlement that it could not resolve the claim), and who have been directed to file an arbitration claim. (¶¶ 32, 40, 49.) The non-consumer Plaintiffs (or “commercial Plaintiffs”) are a California auto dealership, a Missouri auto dealer, a New Jersey residual insurer/vehicle liquidator, and a Nevada corporation that operates a rental car business. Each commercial Plaintiff has purchased, or insured the residual value of, allegedly defective Toyota vehicles. (¶¶ 71-74.) The Court repeats, as it stated above (n. 4), that the truth of these allegations is assumed at the pleadings stage. II. Article III Standing Toyota challenges Plaintiffs’ Article III standing to bring the present action. Presumably, Toyota does so under Fed. R.Civ.P. 12(b)(1), which allows dismissal of an action for lack of subject matter jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.2010) (“Because standing and ripeness pertain to federal courts’ subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.”). Standing under Article III requires three elements. First, Plaintiffs must suffer an “injury in fact,” which means that there must be a concrete and particularized “invasion of a legally protected interest” that is actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Second, Plaintiffs must allege a causal connection between the injury and the conduct complained of, which means that the injury must be “fairly traceable” to Defendants’ actions. Id. Third, Plaintiffs must show that a favorable decision will likely redress the injury. Id. at 561, 112 S.Ct. 2130. Although Plaintiffs bear the burden of establishing standing, “general factual allegations of injury resulting from the defendant’s conduct may suffice” at the pleading stage. Id. Toyota contends that Plaintiffs fail to allege an “injury in fact.” A. A Manifested SUA Defect Is Not Necessary for Standing Toyota points out that numerous Plaintiffs have not experienced the alleged SUA defect. (Defs.’ Mem. at 10.) In the absence of a manifested defect, Toyota argues that those Plaintiffs lack standing because the mere possibility of a defective vehicle is not actual or imminent. Because courts have routinely “rejected the type of defect-without-malfunction theory asserted by many of the Plaintiffs in this lawsuit,” (Defs.’ Mem. at 10), Toyota urges the Court to adopt the same approach here. Plaintiffs respond that the absence of a manifested defect is not controlling because Plaintiffs’ injuries consist of economic losses — that is, the diminished value of Plaintiffs’ vehicles after the SUA defect was made public. (Pltfs.’ Opp’n at 10-14.) The Court agrees with Plaintiffs that experiencing an SUA defect is not required for standing. Standing merely requires a redressable injury that is fairly traceable to Defendants’ conduct. Whether a plaintiff can recover for that injury under a particular theory of liability is a separate question. Here, Plaintiffs allege economic loss injuries, which may or may not be recoverable under Plaintiffs’ claims in the MCC. These alleged economic injuries are sufficient. The Court’s decision is supported by the Fifth Circuit’s opinion in Cole v. General Motors Corp., which held that economic loss allegations were sufficient to establish an injury in fact. 484 F.3d 717, 722-23 (5th Cir.2007). The plaintiffs in Cole alleged that a defendant automobile company designed defective side air bags that unexpectedly deployed in cars. Id. at 720. The putative class in Cole, which excluded those “who sustained bodily injury or death as the result of the unexpected or premature deployment of a side impact air bag,” sought recovery of “the difference between the value of the vehicle as delivered and the value it would have had if it had been delivered as warranted.” Id. at 719-20. The defendant automobile company argued that “plaintiffs lack standing because the air bags in their vehicles never deployed inadvertently, and therefore, they cannot have suffered an injury in fact.” Id. at 722. Without “actual deployment, plaintiffs’ injury is speculative because plaintiffs can only claim that the [air bags] in their vehicles were potentially defective.” Plaintiffs countered that they “suffered economic loss satisfying the injury-in-fact requirement because the [airbags] in all [cars] were defective at the moment of purchase.” Id. The Fifth Circuit held that the economic loss injuries asserted by the plaintiffs were sufficient to confer standing. Id. at 723. In doing so, the court underscored the difference between two distinct inquiries: the inquiry into whether the plaintiffs sufficiently allege an “injury” for standing purposes with the inquiry into whether the plaintiffs’ theories of recovery are viable: Plaintiffs seek recovery for their actual economic harm (e.g., overpayment, loss in value, or loss of usefulness) emanating from the loss of their benefit of the bargain. Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege. Whether recovery for such a claim is permitted under governing law is a separate question; it is sufficient for standing purposes that the plaintiffs seek recovery for an economic harm that they allege they have suffered. Id. In principle, the Court agrees with Cole that “overpayment, loss in value, or loss of usefulness” is sufficient to confer standing. Here, Plaintiffs allege that “Toyota vehicles with ETCS are defective.” (¶ 8.) They further allege that a “statistically significant increase in the number of unintended acceleration complaints put Toyota on notice that there was a defect in its vehicles with ETCS that could cause SUA” (¶ 128), and that “[t]his defect renders the vehicles unsafe.” (¶ 9.) As a result of the SUA defect and the ensuing safety concerns, Plaintiffs allege that “each Plaintiff did not receive the benefit of their bargain and/or overpaid for their vehicles, made lease payments that were too high and/or sold their vehicles at a loss when the public gained partial awareness of the defect.” (¶ 70.) Accepting these allegations as true, every Toyota vehicle with ETCS is defective and has a statistically significant propensity for SUA. While a statistically significant propensity for SUA may not be considered “actual” or “imminent,” the market effect of the alleged SUA defect undoubtedly is actual or imminent (as well as concrete and particularized): According to Plaintiffs’ allegations, Toyota vehicles with ETCS dropped in value owing to the alleged SUA defect. If a defect causes SUA to manifest itself in a small percentage of Toyota vehicles, it makes sense that people would be less willing to buy or use those vehicles on the off-chance that they might experience the SUA defect. All else being equal, prices typically decrease when demand decreases. Hence, the alleged economic loss. Toyota argues that the weight of authority is contrary to Cole. (Defs.’ Reply at 5-6.) See, e.g., Briehl v. Gen. Motors Corp., 172 F.3d 623, 628 (8th Cir.1999) (“Where, as in this case, a product performs satisfactorily and never exhibits an alleged defect, no cause of action lies.”); Contreras v. Toyota Motor Sales USA Inc., No. C 09-06024 JSW, 2010 WL 2528844, at *6 (N.D.Cal. June 18, 2010) (holding that plaintiffs failed to sufficiently allege an injury in fact because there were no allegations that plaintiffs’ “vehicles have manifested the alleged defect” and the “allegation that their vehicles are worth substantially less than they would be without the alleged defect is conclusory and unsupported by any facts.”); Wallis v. Ford Motor Co., 208 S.W.3d 153, 159, 362 Ark. 317 (Ark.2005) (stating that “numerous other jurisdictions have refused to award benefit-of-the-bargain damages when there is no allegation that the product received was not the bargained-for product,” and holding that “common-law fraud claims not resulting in injury are not actionable.”); Ziegelmann v. Daimler-Chrysler Corp., 649 N.W.2d 556, 559, 2002 ND 134 (N.D.2002) (“In this jurisdiction, the torts of negligence, fraud and deceit require proof of actual damages as an essential element of a plaintiffs case, and if no actual loss has occurred, the plaintiff fails to establish liability.”); O’Neil v. Simplicity, Inc., 553 F.Supp.2d 1110, 1115 (D.Minn.2008) (“It is simply not enough for a plaintiff to allege that a product defect suffered by others renders his or her use of that same product unsafe; the plaintiff must instead allege an actual manifestation of the defect that results in some injury in order to state a cognizable claim for breach of warranty, unfair trade practices, or unjust enrichment.”); Whitson v. Bumbo, No. C 07-05597 MHP, 2009 WL 1515597, at *6 (N.D.Cal. Apr. 16, 2009) (holding that plaintiff “does not have standing for her claims under a ‘benefit of the bargain’ theory or any other stated theory” because plaintiff failed “to allege that her [baby seat] manifested the purported defect” or that “a purchase of a substitute for her allegedly defective [baby seat] was necessary.”). Two considerations lead the Court to conclude that Toyota’s line of authority should not control the outcome here. First, cases such as Briehl, Wallis, Ziegelmann, and O’Neil did not address whether an “injury in fact” had been sufficiently alleged for purposes of Article III standing, but rather whether damages were sufficiently alleged in order to support a claim under the theories pled. The “injury in fact” required for standing is conceptually distinct from “damages” required under a particular theory or theories of liability. Denney v. Deutsche Bank AG, 443 F.3d 253, 264-65 (2d Cir.2006). The Second Circuit’s analysis in Denney is worth quoting at length for this proposition, particularly because the court grounded its holding in the precedent of the United States Supreme Court: [A]n injury-in-fact differs from a “legal interest”; an injury-in-fact need not be capable of sustaining a valid cause of action under applicable tort law. An injury-in-fact may simply be the fear or anxiety of future harm. For example, exposure to toxic or harmful substances has been held sufficient to satisfy the Article III injury-in-fact requirement even without physical symptoms of injury caused by the exposure, and even though exposure alone may not provide sufficient ground for a claim under state tort law. See Whitmore [v. Arkansas ], 495 U.S. [149] at 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 [(1990)] (“Our threshold inquiry into standing ‘in no way depends on the merits of the [plaintiffs claim.]’ ”) (quoting Warth, 422 U.S. at 500, 95 S.Ct. 2197); In re Agent Orange Prod. Liab. Litig. (Ivy v. Diamond Shamrock Chem icals Co.), 996 F.2d 1425, 1434 (2d Cir.1993) (rejecting argument that “injury in fact means injury that is manifest, diagnosable or compensable”) (internal quotation marks omitted), overruled in part on other grounds by Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002); Wright, Miller & Kane, supra, § 1785.1 (“[T]his requisite of an injury is not applied too restrictively. If plaintiff can show that there is a possibility that defendant’s conduct may have a future effect, even if injury has not yet occurred, the court may hold that standing has been satisfied.”). The risk of future harm may also entail economic costs, such as medical monitoring and preventative steps; but aesthetic, emotional or psychological harms also suffice for standing purposes. See Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Moreover, the fact that an injury may be outweighed by other benefits, while often sufficient to defeat a claim for damages, does not negate standing. See Sutton, 419 F.3d at 574-75 (holding that the increased risk that a faulty medical device may malfunction constituted a sufficient injury-in-fact even though the class members’ own devices had not malfunctioned and may have actually been beneficial). Id. Plaintiffs here have clearly established “injury in fact.” Second, to the extent that cases such as Contreras and Whitson (or any of the cited cases) hold that standing cannot be established absent a manifested defect, and the former cases can be read to support that proposition, the Court disagrees: As long as plaintiffs allege a legally cognizable loss under the “benefit of the bargain” or some other legal theory, they have standing. B. Pleading a Cognizable Loss under a “Benefit of the Bargain” Theory Toyota argues that Plaintiffs’ “benefit of the bargain” theory does not work because the benefit of the bargain covers manifest or extant defects — not latent defects. (See Defs.’ Reply at 4.) For example, in Coghlan v. Wellcraft Marine Corp., 240 F.3d 449 (5th Cir.2001), the plaintiffs purchased a boat manufactured by the defendant. Id. at 451. Defendants advertised that their boats were made completely of fiberglass, which were more durable and held their value better than boats made of a wood-fiberglass combination. Id. A few months after the purchase, however, the plaintiffs discovered that their boat was actually made of both wood and fiberglass, and they brought suit alleging claims under various consumer protection statutes and implied warranty. Id. The district court dismissed the entire complaint for failing to allege any cognizable damages, but the Fifth Circuit reversed. Id. In doing so, the court stated: The key distinction between this case and a “no-injury” product liability suit is that the [plaintiffs’] claims are rooted in basic contract law rather than the law of product liability: the [plaintiffs] assert they were promised one thing but were given a different, less valuable thing. The core allegation in a no-injury product liability class action is essentially the same as in a traditional products liability case: the defendant produced or sold a defective product and/or failed to warn of the product’s dangers. The wrongful act in a no-injury products suit is thus the placing of a dangerous/defective product in the stream of commerce. In contrast, the wrongful act alleged by the [plaintiffs] is [defendants’] failure to uphold its end of their bargain and to deliver what was promised. The strikjng feature of a typical no-injury class is that the plaintiffs have either not yet experienced a malfunction because of the alleged defect or have experienced a malfunction but not been harmed by it. Therefore, the plaintiffs in a no-injury products liability case have not suffered any physical harm or out-of-pocket economic loss. Here, the damages sought by the [plaintiffs] are not rooted in the alleged defect of the product as such, but in the fact that they did not receive the benefit of their bargain. Id. at 455 n. 4 (emphasis added). According to Toyota, Coghlan’s logic was reasonably applied in Kearney v. Hyundai Motor Co., SACV 09-1298 DOC (MLGx), 2010 U.S. Dist. LEXIS 68242, at *1, 14 (C.D.Cal. June 4, 2010), which dealt with alleged defects in the front passenger-side air bag system in certain lines of automobiles. (Defs.’ Reply at 4.) In Kearney, the plaintiffs alleged that their vehicles failed to properly activate the front passenger side air bag capability when an adult was seated in the front passenger seat. Id. at *3. Federal regulations require vehicles “with advanced air bags [to] ‘be equipped with an automatic suppression feature for the passenger air bag which results ... in activation of the air bag system’ when a properly seated 105-pound individual occupies the front side passenger seat.” Id. at *2. The plaintiffs alleged that this system “failed to activate airbag capability when the 115-pound Nancy Kearney was seated in the front passenger seat” and failed “to activate the front side passenger air bag when the Moores’ 117-pound daughter occupies the front side passenger seat.” Id. at *3. Plaintiffs sued for the diminution in value of their vehicles as a result of the alleged defects and the deprivation of their contractual or property interest in their vehicles which resulted from the plaintiffs “being provided with a car of a different quality than they were promised.” Id. at *10. Although defendant automobile company argued that the plaintiffs lacked standing, the court disagreed and adopted Cole’s logic: “the court in Cole was concerned with the same situation alleged here — 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 — i.e., the loss was suffered ‘at the moment’ of purchase.” Id. at *14 (emphasis in the original). Toyota argues that Coghlan and Kearney stand for the proposition that standing under a “benefit of the bargain” theory is warranted only when every product manifests the alleged defect. In Coghlan, the plaintiffs did not receive an all-fiberglass boat; in Kearney, every passenger-side air bag system was defective because it failed to activate when adults of small stature were properly seated. According to Toyota, Plaintiffs cannot argue a Coghlan-type injury because they got precisely what they bargained for: a car with ETCS. To the extent that Plaintiffs assert a lack of a brake override system or other additional safety feature, such allegations fall short because they were not part of the original benefit of the bargain. Moreover, Plaintiffs cannot allege the type of injury recognized in Kearney because Plaintiffs do not, and cannot, allege that all of their vehicles manifested the SUA defect. Thus, Plaintiffs who did not experience SUA are foreclosed from arguing that they did not receive the benefit of the bargain. The Court disagrees. First, Plaintiffs essentially allege that they contracted for safe vehicles that start and stop upon proper application of the accelerator and brake pedals. Plaintiffs allegedly received defective vehicles subject to dangerous SUA events, meaning that Plaintiffs’ vehicles sometimes do not start and stop as promised. Accepting these allegations as true, they are sufficient to fall under the “benefit of the bargain” rubric. Second, under a “benefit of the bargain” theory, Plaintiffs must allege “overpayment, loss in value, or loss of usefulness.” When those losses are sufficiently pled, they confer standing. Several Plaintiffs allege that they sold or traded in their vehicles at a loss owing to the alleged SUA defect, and these allegations suffice. For example: • Plaintiff Kathleen Atwater alleges that she “traded in her 2009 RAV4 on February 13, 2010, for a 2010 Ford Fusion” and that she “received less for the sale of her RAV4 than she would have received if the vehicle did not have an SUA defect.” (¶ 32.) • Plaintiff Richard Benjamin alleges that he “has seen the trade-in value [of his 2007 Toyota Sienna] drop $2,000 since the recalls” were made public. (¶ 35.) • Plaintiff Brandon Bowron “sold his Lexus on July 7, 2010,” and alleges he “received less value for the car due to the SUA defect.” (¶ 36.) • Plaintiff Matthew Heidenreich “sold his 2010 Corolla to NHTSA for research,” and allegedly “lost money on the sale” because “NHTSA only paid the KELLEY BLUE BOOK value.” (¶ 52.) • Plaintiff Mary Ann Tucker sold her 2005 Toyota Camry “on March 10, 2010, for $9,000,” and alleges she “received less for her vehicle than she would have had her Camry not had a[n] SUA defect.” (¶ 65.) • Plaintiffs Dana and Douglas Weller sold their Toyota RAV4 on March 13, 2010, and allege that they “received less for their trade-in vehicle than they would have had their RAV4 not had a[n] SUA defect.” (¶ 68.) These specific allegations are not eonclusory, and substantiate the alleged “overpayment, loss in value, or loss of usefulness.” It is true that Plaintiffs do not generally allege the precise dollar value of their losses, but that level of specificity is not required at the pleadings stage. It is enough that they allege a tangible loss that can be proved or disproved upon discovery. C. Lead Plaintiffs Must Plead a Cognizable Loss under a “Benefit of the Bargain” Theory Even accepting that Plaintiffs’ “benefit of the bargain” theory confers standing for those who allege an “overpayment, loss in value, or loss of usefulness,” Toyota argues that some allegations of lead Plaintiffs are deficient. As currently pled, several plaintiffs do not allege any loss, as in the following representative examples: • Plaintiff Ebony Brown is a resident and citizen of Illinois. She owns a 2009 Toyota Camry. (¶ 38.) • Plaintiff Gary Davis is a resident and citizen of Tennessee. He owns a 2008 Toyota Camry LE. Mr. Davis purchased his Toyota based on its reputation for safety. (¶ 41.) • Plaintiff Alexander Farrugia is a resident and citizen of New York. He owns a 2009 Toyota Highlander. (¶ 43.) • Carole Fisher is a resident and citizen of Nevada. She owns a 2010 Toyota Prius that she purchased on June 6, 2009. (¶ 44.) • Plaintiff John Flook is a resident and citizen of Maryland. He owns a 2010 Toyota Corolla. (¶ 46.) • Plaintiff Kevin Funez is a resident and citizen of Florida. He owns a 2006 Toyota Avalon. (¶ 47.) • Plaintiff Donald Graham is a resident and citizen of Colorado. He owns a 2007 Toyota Prius. (¶ 50.) • Plaintiff Rodney Josephson is a resident and citizen of Massachusetts. He owns a 2010 Toyota Corolla. (¶ 53.) The Court agrees that these allegations do not go far enough to establish standing under a benefit of the bargain theory. It is true that Plaintiffs generally allege that “each Plaintiff did not receive the benefit of their bargain and/or overpaid for their vehicles, made lease payments that were too high and/or sold their vehicles at a loss when the public gained partial awareness of the defect.” (¶ 70.) As discussed previously, the Court accepts in principle that these allegations are sufficient to confer standing. However, “[i]n a class action, the lead plaintiffs must show that they personally have been injured, ‘not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ ” Me. State Ret. Sys. v. Countrywide Fin. Corp., 722 F.Supp.2d 1157, 1163 (C.D.Cal.2010) (quoting Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). General allegations of loss such as those contained in paragraph 70 of the MCC may suffice for the putative class, see Denney, 443 F.3d at 263-64 (drawing distinction between lead plaintiffs and represented plaintiffs and stating that “[w]e do not require that each member of a class [i.e., represented members] submit evidence of personal standing.”), but that does not excuse lead Plaintiffs from specifically alleging injury. Such allegations are necessary because lead Plaintiffs must have standing to sue prior to class certification. Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 676 (7th Cir.2009) (“Before a class is certified, it is true, the named plaintiff must have standing, because at that stage no one else has a legally protected interest in maintaining the suit.”) (emphasis in the original). In order to ascertain whether lead Plaintiffs have standing, it seems reasonable to require specific allegations by the lead Plaintiffs that support a cognizable injury under Article III, which would preferably be detailed enough so that the Court and Toyota would have no trouble discerning what constitutes the injury — e.g., the “overpayment, loss in value, or loss of usefulness.” D. The Warranties Do Not Preclude Standing Toyota argues that all Plaintiffs lack injuries because all received the benefit of the bargain from their warranties. (Defs.’ Mem. at 13-14.) The exclusive remedy for those who have experienced a defect or malfunction is to obtain warranty repairs from an authorized dealer. The same reasoning applies, a fortiori, to those who have not experienced a defect or malfunction. Cf. Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 251, 872 A.2d 783 (2005) (stating that automobile “defects that arise and are addressed by warranty, at no cost to the consumer, do not provide the predicate ‘loss’ that the CFA [New Jersey Consumer Fraud Act] expressly requires .... ”). Plaintiffs respond that Toyota has not agreed to repair or replace all class members’ vehicles. (Pltfs.’ Opp’ii Brief at 14-15.) Toyota has not identified the root cause of most SUA events, the continuing defect is confirmed by SUA events occurring after recalls, and the purported warranty benefit does not address the diminished value of Plaintiffs’ vehicles. (Pltfs.’ Opp’n Brief at 16.) The Court agrees with Plaintiffs that they have alleged an injury-in-fact despite Toyota’s warranties. First, for the reasons discussed above, Toyota conflates the inquiry into whether Plaintiffs sufficiently allege an “injury” for standing purposes with the inquiry into whether Plaintiffs’ theory of recovery is viable. Plaintiffs allege that they overpaid for defective vehicles owing to the SUA defect. Whether Plaintiffs can recover for their losses owing to the warranties or some other reason is a separate question. For purposes of standing, the alleged economic losses are sufficient. Second, the Court agrees that Plaintiffs sufficiently allege that they have not received the benefit of the express warranties in the Warranty Manual. E. Conclusion for Article III Standing Accordingly, for the foregoing reasons, the Court grants Toyota’s Motion to Dismiss the claims of the lead Plaintiffs who do not sufficiently allege a loss, but otherwise holds that Plaintiffs have adequately established Article III standing. The Plaintiffs who have failed to sufficiently allege standing are granted leave to amend. III. Standing to Assert UCL, FAL, and CLRA Claims Certain claims asserted by Plaintiffs are subject to particularized standing requirements. The UCL and FAL provide a private right of action only if Plaintiffs have “suffered injury in fact and [have] lost money or property as a result of the unfair competition.” Cal. Bus. & Prof.Code § 17204; Clayworth v. Pfizer, Inc., 49 Cal.4th 758, 788, 111 Cal.Rptr.3d 666, 233 P.3d 1066 (2010). “A person whose property is diminished by a payment of money wrongfully induced is injured in his property.” Id. (quoting Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 51 L.Ed. 241 (1906)). Overcharges paid as a result of unfair business practices are sufficient for UCL standing. See id. (holding that overcharges paid as a result of a price-fixing conspiracy were sufficient to support UCL standing); Von Koenig v. Snapple Beverage Corp., 713 F.Supp.2d 1066, 1078 (E.D.Cal.2010) (holding that the plaintiffs sufficiently alleged injury under the UCL, FAL, and CLRA by asserting that the product they received was worth less than what they paid for it owing to defendants’ misleading labels). Here, Plaintiffs allege that they “overpaid for their vehicles, made lease payments that were too high and/or sold their vehicles at a loss when the public gained partial awareness of the defect.” (¶ 70.) While these allegations may generally be sufficient to establish a money or property loss under the UCL and FAL, the Court grants Toyota’s Motion to Dismiss on this issue as to the lead Plaintiffs who have failed to plead “overpayment, loss in value, or loss of usefulness.” The dismissal is without prejudice. IV. Rule 12(b)(6) and Rule 12(f) Standards A. Motion to Dismiss Pursuant to Rule 12(b)(6) In addition to challenging Plaintiffs’ standing to assert their claims, Toyota moves to dismiss all claims for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Pursuant to Rule 12(b)(6), a plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In resolving a Rule 12(b)(6) motion under Twombly, the Court must follow a two-pronged approach. First, the Court must accept all well-pleaded factual allegations as true, but “[t]hread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. Nor must the Court “accept as true a legal conclusion couched as a factual allegation.” Id. at 1949-50 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Second, assuming the veracity of well-pleaded factual allegations, the Court must “determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. This determination is context-specific, requiring the Court to draw on its experience and common sense; there is no plausibility “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.” Id. B. Motion to Strike Pursuant to Rule 12(f) Under Rule 12(f), a party may move to strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed.R.Civ.P. 12(f). The grounds for a motion to strike must appear on the face of the pleading under attack, or from matters which the Court may take judicial notice. SEC v. Sands, 902 F.Supp. 1149, 1165 (C.D.Cal.1995). The essential function of a Rule 12(f) motion is to “avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). Where a party moves to strike a prayer for damages on the basis that the damages sought are precluded as a matter of law, the request is more appropriately examined as a motion to dismiss. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir.2010) (“We therefore hold that Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law”). V. Plaintiffs’ CLRA, UCL, and FAL Claims (First, Second, and Third Causes of Action) Plaintiffs have alleged a number of claims under California consumer protection statutes. First, they allege violations of the Consumer Legal Remedies Act (“CLRA”), California Civil Code §§ 1750 et seq. Second, they allege unfair, deceptive, and unlawful business practices in violation of the Unfair Competition Law (“UCL”), California Business & Professions Code §§ 17200 et seq. Third, they allege violations of the False Advertising Law (“FAL”), California Business & Professions Code §§ 17500 et seq. The Court examines each cause of action in turn. A. Heightened Pleading Standard Under Rule 9(b) Although these claims arise under state law, Plaintiffs’ allegations must be pled according to the Federal Rules of Civil Procedure. As a threshold matter, the parties do not dispute that claims sounding in fraud are subject to Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. Kearns v. Ford Motor Co., 567 F.3d 1120, 1122 (9th Cir.2009) (applying Rule 9(b) standard to UCL and CLRA claims); Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1103-04 (9th Cir.2003) (where plaintiff identifies fraudulent course of conduct as basis for claim, pleading must satisfy particularity requirement). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), allegations of fraud must meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Namely, allegations of fraud “must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). A plaintiff must allege particular facts explaining the circumstances of the fraud, “including time, place, persons, statements made[,] and an explanation of how or why such statements are false or misleading.” Baggett v. Hewlett-Packard Co., 582 F.Supp.2d 1261, 1265 (C.D.Cal.2007). The circumstances of the alleged fraud must be specific enough “to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.” Vess, 317 F.3d at 1106 (internal quotation marks omitted). Under Rule 9(b), a plaintiff must plead each of the elements of a fraud claim with particularity, i.e., a plaintiff “must set forth more than the neutral facts necessary to identify the transaction.” Cooper v. Pickett, 137 F.3d 616, 625 (9th Cir.1997) (emphasis in original). Fraud claims must be accompanied by the “who, what, when, where, and how” of the fraudulent conduct charged. Vess, 317 F.3d at 1106. A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations. Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir.1989). The Court now turns to the parties’ arguments about whether the MCC meets the 9(b) standard. 1. Generalized Statements Toyota argues that Plaintiffs’ FAL, CLRA, and a portion of the alleged “fraud” theory under the UCL fail to meet Rule 9(b)’s heightened pleading standard. (Defs.’ Mem. at 20-21.) Toyota represents that Plaintiffs fail to identify a common defect or malfunction in the ETCS that Toyota knew about and knowingly concealed. (Id.) Toyota also claims that Plaintiffs’ allegations indicated “only that Toyota’s and others’ investigations of a handful of alleged [S]UA incidents or engine surging were inconclusive” and that Plaintiffs may not, under Rule 9(b) “speculate about potential defects” and “claim that Toyota committed fraud by failing to disclose a product defect that is utterly undefined.” (Id. at 22 (emphasis in original).) Toyota argues that the facts in the MCC are similar to those in cases in which courts have dismissed fraud claims for failure to plead according to Rule 9(b). In Kearns, 567 F.3d at 1126, the Ninth Circuit affirmed the district court’s decision to grant a motion to dismiss where plaintiff “fail[ed] to specify what the television advertisements or other sales material specifically stated.” Toyota also urges the Court to follow the decisions of district courts granting motions to dismiss on 9(b) grounds. See, e.g., Hovsepian v. Apple, Inc., No. 08-578, 2009 WL 5069144, at *3 (N.D.Cal. Dec. 17, 2009) (“operative pleading makes conclusory statements as to Apple’s course of conduct” ... “[s]uch generalized allegations do not provide the ‘who, what, when, where, and how5 of the misconduct charged.”); Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 974 (N.D.Cal.2008) (granting motion to dismiss where plaintiff provided “no specific statement or absolute characteristic” regarding products). 2. Specific Defect Allegations Plaintiffs allege numerous facts to support a fraudulent course of conduct underlying these three consumer protection claims. They allege both an SUA defect (see, e.g., ¶¶ 119-29; 150; 165; 229) and a fail-safe defect (¶¶ 18-19; 245-46). Plaintiffs have alleged that beginning in 1996, Toyota had a commitment to “overall safety gains” and that Toyota told the public that “building safe automobiles is the most important thing we can do.” (¶ 82.) Plaintiffs allege that Toyota made representations in 1998 and 2002 that “safety and security of driver and passenger has always been an absolute priority for Lexus” and that Lexus was “raising the standards on standard safety features.” (¶¶ 83, 84.) Plaintiffs also allege that Toyota marketed other car models, such as the Toyota Camry, Prius, and Sienna, through advertisements, brochures, and press kits that claimed the vehicles included safety features such as the ETCS and were “more safe[ ].” (¶¶ 84, 88, 90, 91.) Plaintiffs allege that Toyota had a “general promise of safety and specific promise that the new electronic components being installed in the Defective Vehicles are more reliable than their mechanical predecessors.” (¶ 92) (alleging Toyota issued press releases stating that Toyota vehicles used technological innovations to “deliver a high level of occupant safety”; Lexus “deliver[s] real benefits to owners in terms of safety”; Toyota SUVs “raise the standard”; Toyota customers “have long counted on the brand for the best in performance quality and durability”; Toyota is “obsessed with safety” and “serious about safety”)- Plaintiffs also allege that Toyota issued brochures discussing the safety features of various vehicle models, such as Sienna, RAV4, 4Runner, Land Cruiser, and Sequoia SUVs. (¶¶ 94-98) (“equipped with more safety features”; “more safety”; “same level of advanced safety technology”; “customer [has] peace of mind when purchasing and driving”). Plaintiffs have thus explained who made the representations, where and when they were made, and what the representations are. Plaintiffs allege that Toyota’s representations concerning safety were “false and misleading” because Toyota failed to disclose the SUA defect. (¶ 93; see also ¶¶ 6-7 (increase in SUA events within first year of changing from non-ETCS to ETCS); ¶¶ 119-29 (increase in SUA complaints after Toyota introduced ETCS-i); ¶ 150 (Toyota technicians replicated SUA events without “driver error”); ¶ 229 (SUA incident caused by deviations with ETCS); ¶¶ 225-45 (summary of defects).) Plaintiffs have therefore alleged why Toyota’s statements were false and misleading and have thus met the specificity requirement under Rule 9(b). Thus, it is clear that Rule 9(b) applies to the allegations under the CLRA, the fraud prong of the UCL, and the FAL. As to each of these claims, Plaintiffs have set forth factual allegations that meet the appropriate pleading standard. Plaintiffs have alleged the “who” (Toyota), the “what” (representations that Toyota vehicles are safe); the “where” and “when” (representations were allegedly made in magazine advertisements, press kits, and brochures), and the “why” (Toyota vehicles have a defect that causes SUA). Thus, the FAL, CLRA, and UCL (fraud theory) allegations are properly pled under Rule 9(b). B. CLRA Claims Plaintiffs’ first cause of action is for violations of the CLRA. The CLRA forbids “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ.Code § 1770(a). A fraudulent omission is actionable under the CLRA if the omission is “of a representation actually m