Day

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JONATHAN DAY, et al., Case No. 22-cv-04305-VC

Plaintiffs,

ORDER GRANTING MOTION TO

v. DISMISS

ADVANCED MICRO DEVICES, INC., Re: Dkt. No. 23 Defendant.

The motion to dismiss is granted with leave to amend. This order assumes the reader’s familiarity with the facts of the case and the relevant law. 1. The negligence claim is dismissed because it is barred by the economic loss rule. See CHMM, LLC v. Freeman Marine Equip., Inc., 791 F.3d 1059, 1061 (9th Cir. 2015). The plaintiffs contend that the exception for damage to other property applies, but they have not adequately alleged physical damage to their computers, as required by the case law. See Kalitta Air, L.L.C. v. Cent. Tex. Airborne Sys., Inc., 315 F. App’x 603, 605 (9th Cir. 2008). At the hearing, counsel for the plaintiffs cited In re NVIDIA GPU Litigation and In re Lenovo Adware Litigation for the proposition that performance issues, such as the stuttering alleged here, constitute damage for purposes of the exception to the economic loss rule. But the allegations in those cases were meaningfully different. In NVIDIA,…