Judge: Gary I. Micon, Case: 23CHCV01250, Date: 2025-06-12 Tentative Ruling

Case Number: 23CHCV01250    Hearing Date: June 12, 2025    Dept: F43

Dept. F43

Date: 06-12-25

Case # 23CHCV01250, Stovall v. BMW of North America, LLC, et al.

Trial Date: 01-26-26

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

MOVING PARTY: Defendant BMW of North America, LLC

RESPONDING PARTY: Plaintiff Marissa Stovall

RELIEF REQUESTED

Order granting summary judgment or, in the alternative, summary adjudication on the first, second, and third causes of action.

RULING: Motion for summary judgment is denied.  Motion for summary adjudication is denied.

SUMMARY OF ACTION

On May 26, 2022, plaintiff Marissa Stovall (Plaintiff) entered into a 3-year lease for a new 2022 BMW X4, VIN: 5UX33DT02N9M33960, from defendant Valencia BMW (Valencia), a car dealership.  (UMF No. 1.)  Plaintiff alleges that defendant BMW of North America, LLC (BMW) manufactured and distributed the vehicle and that the vehicle came with express and implied warranties.  (Compl., ¶ 5.)

Plaintiff claims that the vehicle experienced serious defects during the warranty period.  (Compl., ¶ 12.)  BMW asserts that the vehicle was delivered to Plaintiff without any defects or deformities and that the vehicle did not exhibit any warrantable defects or nonconformities during Plaintiff’s 3-year lease.  (UMF Nos. 1-3.)

On April 27, 2023, Plaintiff sued BMW and Valencia for violating the Song-Beverly Consumer Warranty Act, alleging that neither Valencia nor BMW were able to repair the defects and that BMW did not replace the car or make restitution.  The complaint alleges three Song-Beverly causes of action against BMW: (1) Breach of Express Written Warranty (Civ. Code, §¿1791.2, subd. (a), 1794); (2) Breach of the Implied Warranty (Civ. Code, § 1794; Cal. U. Com. Code, § 2711, 2712); and (3) Violation of Civ. Code, § 1793.2, subd. (b).

BMW moves for summary judgment, or in the alternative, summary adjudication on the breach of warranty and violation of Civ. Code, § 1793.2 causes of action.  Plaintiff filed an opposition on May 23, 2025.  BMW replied on June 2, 2025.

SUMMARY OF ARGUMENTS

BMW asserts that contends that it is entitled to judgment, as a matter of law, because the undisputed facts show that that Plaintiff cannot present evidence establishing the multiple repairs requirement because the defects alleged mentioned in the Complaint resulted from Valencia’s negligence not defects in the vehicle.  The evidence also shows that the vehicle was fit for its ordinary use as safe transportation, the vehicle did not suffer from any non-cosmetic defects, and the vehicle did not contain defects when it was delivered.  Plaintiff’s non-warranty repair visits were caused by defendant Valencia’s negligence during a routine oil change when Valencia forgot to secure the drain plug after the oil change.  The warranty history does not contain a single repair.

Plaintiff opposes stating that BMW has presented inadmissible evidence and attempts to evade liability by blaming its agent Valencia.  BMW relies on inadmissible evidence of which declarant Brown has no personal knowledge.  Further declarant Brown has not been designated as an expert even though he provides the equivalent of expert testimony about facts not within his personal knowledge.  BMW has the burden to prove causation for its Song-Beverly claims and lack of warranty coverage for each defect.  The evidence shows that Plaintiff presented her vehicle for repairs on February 13, 2023 and March 11, 2023—within the first 18 months or 18,000 miles of the lease.  The first repair required Valencia to replace the entire engine and a faulty starter because the vehicle lost power while Plaintiff was driving it.  Valenica also did an oil change, cleared fault codes, and reset values.  Plaintiff presented the vehicle for a second repair because the vehicle stopped running and smoke was coming from the right exhaust pipe.  Valencia verified the issues, replaced the turbo charger and hardware and cleaned the exhaust system.  A dispute of material fact exists concerning whether these repairs that occurred during the warranty period under BMW’s directive to its agent Valencia about not labeling the repair indicates lack of warranty repairs concerning the BMW claims.  Valencia’s representative testified that BMW knew about the repairs and knew they were warranty repairs.  Valencia never submitted the warranty repair work to BMW for reimbursement or pre-approval.  However, BMW was involved in the repair because it told a dealership employee to change the labor type on the engine to internal.

BMW reiterates that the evidence demonstrates that Plaintiff’s vehicle did not suffer from defects or nonconformities giving rise to Song-Beverly claims.  Not a single issue was presented to BMW under the warranty, only Valencia.  Plaintiff’s evidentiary objections lack merit because the lease agreement and repair orders are relevant to the issues in this case.  Further the statements from BMW’s representative are based on his personal knowledge and review of BMW’s business records.  The testimony from Valencia’s person most knowledgeable supports BMW’s arguments, and Plaintiff presents no other evidence other than the PMK deposition.

EVIDENTIARY OBJECTIONS

Plaintiff objects to BMW’s Travis Brown Declaration.

Overruled: 1 (in part: “Every new BMW vehicle, . . . inspection check.”); 2 (in part: “My review . . . several occasions.”); 4 (in part: ¶ 1 “This declaration . . . business records.”).

Sustained: 1 (in part: “I am informed . . . defects or nonconformities.”); 2 (in part: “With their lease . . . a maintenance plan.”); 3; 4 (in part, ¶ 1 “which were created . . . business procedures.”; ¶ 6.); 5; 6; 7; 8.

Plaintiff also objects to BMW exhibits for lack of foundation, lack of personal knowledge, and hearsay:

·         Exhibit 1 - Lease Agreement

·         Exhibit 2 - Warranty Vehicle Information Report for Plaintiff’s vehicle

·         Exhibit 3 - Service Request Detail

·         Exhibit 4 - Repair Order No. 466007

·         Exhibit 5 - Repair Order No. 471239

·         Exhibit 6 - Repair Order No. 427720

Overruled: None.

Sustained: 9.

ANALYSIS

Summary Judgment

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if 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 pleadings frame the issues for motions “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.)  “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

            The parties’ evidence

BMW presents one piece of admissible evidence: Exhibit 7 - Plaintiff’s Complaint.  Because the court sustained most of the evidentiary objections, BMW fails to carry its initial burden.

Plaintiff presents one piece of admissible evidence: Exhibit A - Deposition of Valencia’s person most knowledge, Nicole Marrone.

Issue Nos. 1, 2, and 3: BMW is not entitled to judgment, as a matter of law, because the undisputed evidence does not establish the existence of a warranty, and triable issues of fact exist concerning whether Plaintiff’s vehicle was delivered with defects or nonconformities and whether the engine and turbocharger repairs were warrantable.

BMW asserts that Plaintiff’s express warranty claim fails as a matter of law because Plaintiff’s engine failure repairs are non-warranty repairs covered by the dealer.  Plaintiff asserts that a dispute exists concerning whether BMW was involved with the repairs and knew that Plaintiff’s vehicle was at Valencia for warranty repairs. 

“To succeed on a claim for breach of an express warranty for a vehicle, the buyer plaintiff must prove that (1) the vehicle had a defect or nonconformity covered by a written warranty that substantially impaired the vehicles use, value, or safety to a reasonable person in plaintiff's shoes (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer for repair (the presentation element); (3) the manufacturer or its authorized repair facility did not repair the defect after a reasonable number of repair attempts (the failure to repair element); and (4) the manufacturer did not promptly replace or repurchase the vehicle from the plaintiff (the failure to replace or repurchase element).”  (Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 879; Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138; Civ. Code, § 1793.2.)  Section 1793.2, subdivision (d)(2) states that a consumer may seek Song-Beverly remedies if a vehicle manufacturer “is unable to service or repair a new motor vehicle . . . to conform to the applicable express warranties after a reasonable number of attempts[.]”  (Civ. Code, § 1793.2, subd. (d)(2).)

Implied warranty of merchantability means the consumer goods: “(1) [p]ass without objection in the trade under the contract description[;] (2) [a]re fit for the ordinary purpose for which such goods are used[;] (3) [a]re adequately contained, packaged, and labeled[;] and (4) [c]onform to the promises or affirmations of fact made on the container or label.”  (Civ. Code, § 1791.1, subd. (a).)

“[A] plaintiff bringing a claim under the Song-Beverly Act must present the vehicle for repair on more than one occasion.”  (Godinez v. BMW North America, LLC (C.D. Cal. 2021) 2021 WL 6102911, at p. *4 [citing Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208].)

BMW contends that Plaintiff must present her vehicle for the same complaint two or more times in order to sustain a Song-Beverly claim.  BMW cites Silvio v. Ford Motor Co. to support its position.  There, the evidence showed that plaintiffs gave defendant Ford Motor and its authorized dealership one opportunity to repair plaintiffs’ allegedly defective Ford vehicle and refused to present the vehicle for a second repair attempt.  (Silvio, supra, 109 Cal.App.4th at p. 1207.)  Defendants moved for summary judgment contending that the phrase “reasonable number of attempts” means the consumer must give authorized repair facilities at least two chances to repair the alleged issues.  (Silvio, supra, 109 Cal.App.4th at p. 1207.)  The court granted summary judgment.

The court finds that this case is irrelevant to this motions due to BMW’s lack of admissible evidence.  BMW asserts that the undisputed facts show that the vehicle was delivered to Plaintiff without defects or nonconformities.  (UMF No. 2.)  Because BMW only presents one piece of admissible evidence (the Complaint), the undisputed evidence does not support BMW’s assertions.

Plaintiff opposes stating that no BMW employees investigated any repairs on Plaintiff’s vehicle.  (Plaintiff’s Opp. UMF No. 2.)  Plaintiff presents deposition testimony from defendant Valencia’s person most knowledgeable, service director Nicole Marrone.  (See Declaration of Christopher Urner, ¶ 2; Exh. A: Nicole Marrone Deposition - taken 4/11/24.)  Marrone testified that Valencia’s shop foreman contacted a BMW engineer about the engine problems in Plaintiff’s vehicle, but that nothing came of it and no warrant repair was submitted.  (Marrone Depo., p. 12:6-12.)  Marrone also states that Valencia was not aware of BMW requesting any parts Valencia stored from Plaintiff’s vehicle.  (Marrone Depo., p. 13:15-21.)  According to Marrone, Valencia never did any warranty claims on Plaintiffs’ vehicle.  (Ibid.)  Thus, a dispute exists concerning whether Plaintiff’s vehicle was delivered without defects and nonconformities.

Next, BMW asserts that the undisputed facts show that Plaintiff’s vehicle did not exhibit warrantable defects or nonconformities during the lease.  (UMF No. 3.)  BMW does not present admissible evidence, nor does Plaintiff present evidence to dispute BMW’s assertion.  Therefore, the evidence fails to establish whether Plaintiff’s vehicle did or did not exhibit warrantable defects or nonconformities.

Finally, Plaintiff’s separate statement does not clearly state what single material fact she asserts, but references portions of the Marrone deposition to establish that: (1) Plaintiff did not misuse or abuse the vehicle; (2) it is unclear whether BMW investigated the Plaintiff’s vehicle’s sudden loss of oil; (3) Valencia never submitted warranty repair work to BMW for reimbursement; (4) Valencia replaced the engine in Plaintiff’s vehicle; (5) BMW told Valencia to change the labor type on a repair to internal to the dealership rather than BMW; (6) the second engine repair involved replacing the turbocharger on March 11, 2023; (7) Valencia did not submit the turbocharger repair to BMW for payment; (8) Valencia did not charge Plaintiff for the turbocharger repair; (9) Valencia has no record of BMW requesting information about the engine replacement or the turbocharger repair; and (10) BMW did not deny warranty coverage for the repairs.  (Plaintiff’s UMF No. 1.)

BMW does not dispute these assertions or the supporting evidence.

Because the court sustained most of the evidentiary objections to BMW’s evidence, BMW fails to carry its initial burden.

Accordingly, the court denies BMW’s motion for summary judgment and summary adjudication of the first, second, or third causes of action.

CONCLUSION

Defendant BMW of North America, LLC’s motion for summary judgment and summary adjudication is denied.