Judge Bruce G. Iwasaki, Case Number: 21STCV08772, Date: 2023-05-10 Tentative Ruling

Tentative Ruling: Defendant BMW’s motion for summary judgment is denied because the defendant did not address the plaintiff’s Magnuson-Moss Warranty Act claims in the First Amended Complaint.

The request for summary adjudication of the first cause of action for breach of express warranty obligations and the second cause of action for breach of implied warranty obligations under the Song-Beverly Consumer Warranty Act is granted.

The request for summary adjudication of the fifth cause of action for negligent repair is denied.

This action arises under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”) and Magnuson-Moss Warranty Act, alleging defects in a 2017 BMW 340i.

On March 5, 2021, Plaintiff Thomas Critchfield (“Plaintiff”) filed this action against Defendants BMW of North America, LLC (“BMW NA”), Irvine Europcars, LLC dba Irvine BMW (erroneously sued as Irvine BMW Mini) (“Irvine BMW”), and Does 1 through 50, inclusive (collectively “Defendants”), asserting causes of action for (1) breach of express warranty obligations under the Song-Beverly Act, (2) breach of implied warranty obligations under the Song-Beverly Act, and (3) negligent repair.

On September 20, 2022, BMW NA filed the instant motion for summary judgment or adjudication.

On October 20, 2022, Plaintiff filed a motion for leave to file a First Amended Complaint (“FAC”).

On November 16, 2022, the Court granted Plaintiff’s opposed motion for leave to file the FAC.

On November 18, 2022, Plaintiff filed the operative FAC against the Defendants, adding two causes of action (the third cause of action for breach of express warranty and fourth cause of action for breach of implied warranty) under the Magnuson-Moss Warranty Act.

On April 26, 2023, Plaintiff filed his opposition to the motion for summary judgment or adjudication.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a).) “[I]f all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c, subd. (p)(2).) A defendant moving for summary judgment may meet its initial burden by proving that for each action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

BMW NA’s motion is directed at the first, second, and third causes of action in the original Complaint. The Court will consider it as directed at the first, second, and fifth causes of action in the FAC.[1]

On or about June 28, 2020, Plaintiff purchased a 2017 BMW 340i (the “Vehicle”) from BMW NA’s authorized dealer and agent (FAC, ¶¶ 6, 8.)

Plaintiff alleged that BMW NA appended to the Vehicle an express written “new car” warranty, promising to perform any repairs or replacement of parts necessary (to ensure that the Vehicle and its components were free from all defects in material and workmanship), and to perform any adjustments required to maintain the utility of the Vehicle (including its parts), for four (4) years or 50,000 miles. (FAC, ¶ 9; Exhibit B – a “new vehicle limited warranty” for a 2017 BMW.)

On or about July 13, 2020, at an odometer reading of or around 13,464 miles, Plaintiff returned the Vehicle to Defendants for repairs under the warranties. (FAC, ¶ 11(a).) Subsequently, the Vehicle further exhibited additional defects and other issues. (FAC, ¶ 11(b).) On each occasion on which the Vehicle exhibited defects, nonconformities, misadjustments, or malfunctions, Plaintiff notified BMW NA through Irvine BMW or one of BMW NA’s other authorized service and repair facilities within a reasonable time. (FAC, ¶ 12(a).) On each occasion of notification, Plaintiff attempted to invoke the applicable warranties, demanding that the authorized repair facilities repair the nonconformities pursuant to the warranties. (FAC, ¶ 12(b).) On each such occasion, Defendants represented that they could and would make the Vehicle conform to the applicable warranties or that they successfully repaired it. (FAC, ¶ 13(a).)

The First Amended Complaint alleges that Defendants failed to make the Vehicle conform to the applicable warranties, despite reasonable number of attempts to do so. (FAC, ¶ 13(b).) Defendants’ failure to perform the proper repairs, parts replacements, or adjustments to make the Vehicle conform to the applicable express warranties constituted a breach. (FAC, ¶ 16.)

“‘A plaintiff pursuing an action under the [Song-Beverly] Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).’” (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.)

BMW NA argues that Plaintiff’s vehicle is not a “new motor vehicle” under Song-Beverly Act and, therefore, is entitled to summary adjudication of Plaintiff's first cause of action for breach of express warranty. BMW NA argues this case is like Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (“Rodriguez”), where the plaintiffs bought a used vehicle with a balance remaining on a new vehicle warranty. (Motion, p. 2:6-7.)

In opposition, Plaintiff argues that Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123 (“Jensen) should govern the definition of “new motor vehicle” under the Song-Beverly Act and that Rodriguez was wrongly decided.

The meaning of the “new motor vehicle” under the Song-Beverly Act was at issue in both Rodriguez and Jensen. In relevant part, the statutory language states:

“New motor vehicle” includes the chassis, chassis cab, and that portion of a motor home devoted to its propulsion, but does not include any portion designed, used, or maintained primarily for human habitation, a dealer-owned vehicle and a “demonstrator” or other motor vehicle sold with a manufacturer’s new car warranty. (Civ. Code, § 1793.22, subd. (e)(2), italics added.)

In Rodriguez,[2] the Court of Appeal held the italicized phrase above, “‘other motor vehicle sold with a manufacturer’s new car warranty’ unambiguously refers to cars that come with a new or full express warranty.” (Rodriguez, supra, 77 Cal.App.5th at p. 222.) It does not refer to “previously sold cars accompanied by some balance of the original warranty.” (Id. at p. 225.) In that case, the plaintiffs purchased a used truck that had 55,000 miles on it from a third-party used car dealership. The plaintiffs did not purchase any additional warranties, though the original powertrain warranty was still in effect at the time of purchase. (Id. at p. 209.) The trial court granted the vehicle manufacturer’s motion for summary judgment because the vehicle was used. The Fourth District Court of Appeal affirmed, finding that the statutory text[3] and legislative history supported its reasoning that a used vehicle with some balance of the original warranty was not a “new motor vehicle” under the Song-Beverly Act. (Id. at pp. 219-223.) The Court of Appeal further noted that it was unclear whether the third-party dealership issued any warranties to plaintiffs, “but that would be the only way they could seek a refund or replacement under the Act.” (Id. at pp. 223.)

Rodriguez found Jensen “easily distinguishable” because “Jensen involved a lease by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease.” (Rodriguez, supra, 77 Cal.App.5th at p. 222 [italics in original].)

In Jensen, the plaintiff leased a vehicle that had 7,565 miles from a manufacturer-affiliated dealer. The salesman incorrectly represented that it “had been used as a demonstrator for the dealership.” (Jensen, supra, 35 Cal.App.4th at p. 119.) The lease was issued with a “36,000-mile warranty on top of the miles already on the car.” The Third District engaged in statutory analysis, finding that “the words of section 1793.22 are reasonably free from ambiguity” because “[t]he use of the word ‘or’ in the statute indicates ‘demonstrator’ and ‘other motor vehicle’ are intended as alternative or separate categories of ‘new motor vehicle’ if they are 'sold with a manufacturer's new car warranty.’”[4] (Id. at p. 123.) The Court noted the “peculiar grammatical structure” of the section and further reviewed the amendments, documents relating to legislative proceedings, and the overall statutory scheme, concluding that “section 1793.22 includes cars sold with a balance remaining on the new vehicle warranty.” The Court cited to the “Act’s purpose as a remedial measure” and to protect “‘any individual to whom the vehicle is transferred during the duration of a written warranty.’” (Id. at p. 126.)

Allowing that Jensen was “correctly decided,” Rodriguez commented that its statutory interpretation should be limited to the unique facts in that case: the manufacturer had issued a full warranty at the time of sale. Several other cases in the Fourth District have distinguished Jensen on similar grounds. (Kiluk, supra, 43 Cal.App.5th at p. 340, fn. 4 [questioning Jensen’s broad holding that “every car sold with any portion of a new-vehicle warranty remaining is a new motor vehicle”]; Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923 [limiting Jensen to the facts in the case, which involved a lease from the dealer, not a private party].)

The Rodriguez Court noted that since Jensen involved “a full manufacturer’s warranty issued by the manufacturer’s representative, the [Jensen] court was not asked to decide whether a used car with an unexpired warranty sold by a third party reseller qualifies as a ‘new motor vehicle.’” (Rodriguez, supra, 77 Cal.App.5th at p. 224.)

Therefore, “[h]aving examined the statutory provision, its place within the Act as a whole, and its legislative history, [the Rodriguez Court] conclude[d] the phrase ‘other motor vehicles sold with a manufacturer’s new car warranty’ refer[red] to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.” (Rodriguez, supra, 77 Cal.App.5th at p. 224.)

This Court seeks to determine whether Jensen or Rodriguez offers the more fitting authority to the facts presented here. In Jensen, the plaintiff purchased from a manufacturer-affiliated dealer and was issued a new warranty. On those facts, the Jensen Court found that the vehicle in question was a new motor vehicle. In Rodriguez, the absence of a new warranty issued at the time of sale, despite a balance remaining on the original manufacturer’s warranty, led the court to conclude that it was not a new motor vehicle.

This case involves a used vehicle that was accompanied by a balance of original warranty as in Rodriguez, and not a vehicle sold with a full manufacturer’s warranty as in Jensen.

First, there is no issue of fact that the Vehicle was a used car when Plaintiff purchased it.

To prove that the Vehicle was “used,” BMW NA has attached a copy of the retail installment sale contract (the “Retail Contract”) for the Vehicle. (Declaration of Daniel R. Villegas (“Villegas Decl.”), ¶ 3; Exhibit 2 – a copy of Retail Contract.) The Retail Contract is also attached to the FAC as Exhibit A. There are two check boxes under Section 2 of the Retail Contract, one for “New” and the other for “Used.” (Villegas Decl., Exhibit 2, p. 1, top of the page.) Only the “Used” box is checked. In addition, the Odometer Reading at the time of purchase was 10,910 miles. (Villegas Decl., Exhibit 2, p. 1, Section 2.)

In opposition, Plaintiff argues that he was the “first retail owner” since Century West BMW owned the vehicle for two years preceding the sale. As evidence, he submits the declaration of Brianna Sidorakis, the Vice President of Investigative Services at Premier Group International, an investigation and security corporation. (Sidorakis Decl., filed April 26, 2023, ¶ 1.) On August 2, 2022, Sidorakis was contacted by Daniel Z. Inscore at Wirtz Law regarding ordering an owner history and photo history for the Vehicle between 2016 and 2020. (Sidorakis Decl., ¶ 3.) On August 16, 2020, they received a certificate of title on the vehicle to BMW Financial Services dated October 25, 2016, from the State of New Jersey Motor Vehicle Commission. (Sidorakis Decl., ¶ 4; Exhibit 1.) The Exhibits attached to the declaration of Sidorakis show that the Vehicle’s title passed from BMW NA to Century West BMW.

Plaintiff then argues that because Century West BMW owned the vehicle for those two years, the vehicle was a “dealer-owned vehicle” and, therefore, a “new motor vehicle” under the Song-Beverly Act.

However, BMW NA has produced the declaration of Leona Leal to prove that the Vehicle was leased before Plaintiff purchased it. Leal is the Business Manager of Century West BMW, where Plaintiff purchased the Vehicle. As a Business Manager, Leal can access documents, including repair records and sales and lease files. In addition, as part of her responsibilities and duties, she can certify records. (Leal Decl., ¶ 1.) On May 14, 2018, Century West BMW entered into a BMW Financial Services NA, LLA Motor Vehicle Lease Agreement (Closed End) – California (“Lease”) with Martin Perez (“Perez”) for the lease of the Vehicle. (Leona Decl., ¶ 3.) The Vehicle had 3,506 miles on the odometer at the time of the lease to Perez, and the term of the Lease was twenty-four (24) months from May 24, 2018, to May 14, 2020. (Leona Decl., ¶ 3; Exhibit A – a copy of the Lease.) Leal also searched and found repair orders for the Vehicle listing Perez as a customer. (Leal Decl., ¶¶ 4-6.) As of May 15, 2020, a day after the end of the Lease, Perez returned the Vehicle to Century West BMW. (Leal Decl., ¶ 7.)

Plaintiff has not introduced any evidence disputing the facts in Leal’s declaration or any authority holding that a leased vehicle constitutes a “dealer-owned vehicle” and, therefore, a “new motor vehicle” under the Song-Beverly Act.

Second, it is undisputed that unlike in Jensen, the Vehicle did not come with “a full manufacturer’s warranty issued by the manufacturer’s representative ….” (Rodriguez, supra, 77 Cal.App.5th 209, 224 [discussing the facts in Jensen].) This case is more similar to the circumstances in Rodriguez because it involves a used car with an unexpired warranty, and no newly issued warranty.

To prove this, BMW NA submits the declaration of Gabriel Paredes (“Paredes”). Paredes is a Technical Field Analyst that has worked for the defendant since 2015. (Paredes Decl., ¶¶ 1, 2.) He has personal knowledge of the matters stated in his declaration. (Paredes Decl., ¶ 1.) It is his understanding that Plaintiff bought the Vehicle from Century West BMW, an independent third-party dealer not owned by BMW NA. (Paredes Decl., ¶¶ 4, 5.) He testifies that even though BMW NA made express warranties when the Vehicle was new, BMW NA did not make any express warranties concerning the sale of the Vehicle as a used vehicle. (Paredes Decl., ¶ 6.)

In opposition, Plaintiff argues that he had a full warranty because (1) the warranty provided that the “[c]overage beg[an] on the date of first retail sale or the date the vehicle is first placed into service as a sales demonstrator, Aftersales Mobility Program (AMP) Vehicle or company vehicle, whichever is earlier,” (2) vehicle’s records show the first retail sale was to Plaintiff, and (3) indeed, the “Prior Use” form provided by the dealer to Plaintiff states that the Vehicle was not used as a company vehicle, service loaner, or demonstrator.

However, as stated above, BMW NA has produced undisputed evidence that Century West BMW leased the Vehicle to Perez before selling it to Plaintiff. Plaintiff has not shown that the warranty did not start when Perez acquired the Vehicle. In addition, although the Prior Use form Plaintiff received did not have initials next to “Dealer Loaner Vehicle,” or “Dealer Rental Vehicle,” it also stated that “[t]o the best of Dealer’s knowledge, this Vehicle’s prior history and/or use does not match any of [those] … categories.” (Plaintiff’s Exhibits, Exhibit 6, p. 1 [emphasis added].) The inconclusive nature of that statement, “best of Dealer’s knowledge,” is not enough to contradict the evidence that Century West BMW’s Leal has produced showing that the company leased the Vehicle to Perez before Plaintiff bought the Vehicle.

Plaintiff also appears to argue that a triable issue of material fact concerning whether BMW NA provided express warranties for the Vehicle exists because when he purchased the Vehicle, he received a Buyer’s Guide that specifically said: “Manufacturer’s Warranty Still Applies. The manufacturer’s original warranty has not expired on some components of the vehicle.” (Plaintiff’s Exhibit List, filed April 26, 2023, Exhibit 3, p. 1 [emphasis removed]; Declaration of Thomas Critchfield, filed April 26, 2023, ¶ 5.)

However, that statement alone in the Buyer’s Guide is not enough to show that BMW NA agreed to provide express warranties for the Vehicle along with the sale of the Vehicle as a used car. In other words, Plaintiff has not produced evidence showing that BMW NA made or agreed to that statement.

For those reasons, the Court finds that BMW NA has met its burden of showing that Plaintiff’s first cause of action for breach of express warranty has no merit under the Song-Beverly Act because the Vehicle was not a new motor vehicle. The Court also finds that Plaintiff has failed to meet his burden of showing a triable issue of one or more material facts regarding that issue.

Accordingly, summary adjudication of the first cause of action for breach of express warranty under the Song-Beverly Act is granted.

The FAC alleges that when BMW NA distributed the Vehicle into commerce, and Plaintiff acquired the Vehicle, BMW impliedly warranted that the Vehicle was merchantable as provided in the Song-Beverly Act. (FAC, ¶ 28.) However, the Vehicle was not merchantable, as evidenced by the defects and other issues alleged. (FAC, ¶ 29.)

In vehicle sales, the implied warranty of merchantability “means that the goods ‘[p]ass without objection in the trade under the contract description,’ and are ‘fit for the ordinary purposes for which such goods are used.’” (Brand v. Hyundai Motor Am. (2014) 226 Cal.App.4th 1538, 1545.) “[A] new car need not ‘be perfect in every detail’; rather, its implied merchantability ‘requires only that a vehicle be reasonable suited for ordinary use.’” (Id. at p. 1546.) A plaintiff must show that at the time of purchase, “the product did not possess even the most basic degree of fitness for ordinary use.” (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 406.) For a vehicle, this means whether it was fit for driving and the “ordinary purpose of providing transportation.” (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1296.)

Here, BMW NA argues that “Civil Code section 1795.5 only imposes liability for breach of the implied warranty in connection with the sale or lease of a used vehicle on a distributor who makes an express warranty in connection with the sale or lease of the used vehicle, rather than on a distributor, like BMW NA, who only made express warranties with respect to the Vehicle when it was new.” (Motion, p. 2:24-27.) BMW NA further argues that “it is undisputed that BMW NA only made express warranties with respect to the Vehicle when it was new; it did not make any additional express warranties with respect to the sale of the Vehicle by Century West BMW as a used vehicle.” (Motion, p. 4:4-7.)

In light of the Court’s findings above, the Court finds that BMW NA has met its initial burden of showing that it did not make any additional express warranties when Century West BMW sold the Vehicle to Plaintiff. Therefore, the burden shifts to Plaintiff to show a triable issue of material fact concerning that issue.

Here, Plaintiff argues that because the vehicle is considered a “new motor vehicle” distributed by BMW to Century West BMW and sold to Plaintiff with an express warranty, Plaintiff also received a 12-month implied warranty of merchantability.

However, the Court has found that Plaintiff has failed to meet his burden of showing that the Vehicle is a “new motor vehicle” under the Song-Beverly Act. Plaintiff has also failed to produce evidence showing that BMW NA made an express warranty in connection with the sale of the Vehicle as a used car.

Therefore, summary adjudication of the second cause of action for breach of implied warranty under the Song-Beverly Act is granted.

Plaintiff asserts the fifth cause of action for negligent repair against Defendant Irvine BMW, alleging that he delivered the Vehicle to the defendant for repair, but the defendant breached its duty to repair the vehicle according to industry standards, causing Plaintiff damages. (FAC, ¶¶ 64-71.)

BMW NA moves for summary adjudication of the fifth cause of action. However, as Plaintiff argues in his opposition, the claim was brought against Defendant Irvine BMW, not BMW NA. Irvine BMW has not indicated it is moving for summary judgment on that claim.

Therefore, since the fifth cause of action was brought against Irvine BMW and not BMW NA, the latter has failed to meet its initial burden for summary judgment as to that claim.

Accordingly, summary adjudication of the fifth cause of action for negligent repair is denied.

The request for summary judgment is denied because the defendant did not address the plaintiff’s Magnuson-Moss Warranty Act claims in the First Amended Complaint.

The request for summary adjudication of the fifth cause of action for negligent repair is denied.

[1] BMW NA’s motion is not directed at Plaintiff’s third cause of action and fourth cause of action under the Magnuson-Moss Warranty Act. Therefore, the Court disregards Plaintiff’s arguments regarding those claims. (Opposition, p. 9:1-14 [discussing the Magnuson-Moss Warranty Act claims].)

[2] Although California Supreme Court has granted review of Rodriguez, the case “may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under [Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456], to choose between sides of any such conflict.” (Rodriguez v. FCA US (Cal. 2022) 295 Cal.Rptr.3d 351; Cal. Rules of Court, rule 8.1115(e)(3).)

[3] The Rodriguez Court reasoned that section 1793.22(e)(2) referred to a list of “two vehicles (dealer-owned vehicles ‘and’ demonstrators) followed by an adjectival clause qualifying or describing those vehicles.” It explained that the lack of a comma in the phrase “dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty’ suggested that the latter phrase-of “other motor vehicle” was “intended to function as a catchall provision to cover a narrow class vehicle – the previously driven, but basically new (i.e., not previously sold) car.” (Rodriguez, supra, 77 Cal.App.5th at p. 220.)

[4] In contrast to Rodriguez, the Jensen Court did not emphasize the lack of a comma in the phrase “dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty,” but instead focused on the word ‘or’ to hold that this phrase created an additional category of “new motor vehicle.” (Jensen, supra, 35 Cal.App.4th at p. 123.) Thus, while Rodriguez concluded that the clause defined two additional types of vehicles as “new,” the Jensen Court concluded that the clause defined three: dealer-owned vehicles, demonstrators, and other vehicles sold with a manufacturer’s new car warranty.

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