Judge: Lee W. Tsao, Case: 20NWCV00376, Date: 2023-02-16 Tentative Ruling

Case Number: 20NWCV00376    Hearing Date: February 16, 2023    Dept: C

KAYFES v. BMW OF NORTH AMERICA, LLC

CASE NO.:  20NWCV00376

HEARING:  02/16/23

ADD ON 1

TENTATIVE ORDER

Defendant BMW OF NORTH AMERICA, LLC’s Motion for Summary Adjudication is GRANTED.

Moving Party to give Notice.

No Reply filed as of February 14, 2023.

Plaintiff’s Request for Judicial Notice is GRANTED. Cal. Ev. Code §452.

This “lemon law” action was filed by Plaintiff GWENDOLYN KAYFES (“Plaintiff”) on July 13, 2020. On March 8, 2022, the operative First Amended Complaint (“FAC”) was filed.

The FAC alleges, in pertinent part, “This is a ‘lemon law’ lawsuit. In December 2019, [Plaintiff] purchased a BMW M Coupe that is covered by Defendants’ express and implied warranties. The BMW M Coupe suffers from a defect that causes the vehicle to produce a loud whining, grinding noise while the vehicle is being driven. On at least five occasions, Plaintiff returned the BMW M Coupe to Defendants’ authorized repair facilities for repair of this defect—but Defendants are either unable or unwilling to diagnose and repair the problem.” (FAC ¶1.)

The FAC asserts the following causes of action: (1) Failure to Promptly Repurchase New Motor Vehicle; (2) Breach of Implied Warranty of Merchantability; (3) Breach of Express Warranty (Magnusson-Moss Consumer Warranty Act); (4) Breach of Implied Warranty (Magnusson-Moss Consumer Warranty Act).

Defendant BMW OF NORTH AMERICA, LLC (“Defendant”) moves for summary adjudication of Plaintiff’s First, Second, and Fourth Causes of Action. Defendant argues that Plaintiff bought a used 2018 BMW M Couple from McKenna Porsche—an independent, third-party dealer that is not an authorized BMW dealer, and that Defendant did not issue any warranties in connection with the sale of the Subject Vehicle as a used vehicle sold by McKenna Porsche.

First Cause of Action – Failure to Promptly Repurchase New Motor Vehicle

Defendant argues that it is entitled to summary adjudication of the first cause of action because the Subject Vehicle was not a “new motor vehicle” under the Song-Beverly Consumer Warranty Act (“The Act”). 

The recent decision from the Fourth District, Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez) holds that the Act does not apply to used vehicles sold with a balance remaining on the manufacturer’s express warranty. (Id. at 225.)  “Though we think Jensen was correctly decided, we agree with Dagher that its statement about ‘the Act’s coverage for subsequent purchasers of vehicles with a balance remaining on the express warranty, must be read in light of the facts then before the court, and are limited in that respect.’ [Citation.] Given that those facts included a car leased with a full manufacturer’s warranty issued by the manufacturer’s representative, the 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.’” (Id. at 224.) Rodriguez is, however, pending before our Supreme Court and thus constitutes only persuasive authority and “has no binding or precedential effect.” (CRC Rule 8.1115(e)(1).)

This Court finds Rodriguez to be persuasive, given the facts of the instant case. Here, it is undisputed that Plaintiff bought a used 2018 BMW M Coupe from McKenna Porsche on December 8, 2019. (SS No. 1.)  Plaintiff does not allege or argue that Defendant issued a new or full express warranty with the vehicle at the time of sale to the plaintiff.  Id. at 218 (the Song-Beverly Act provides limited protections for used goods where the entity selling the used product issues an express warranty at the time of sale.) (emphasis in original). 

In Opposition, Plaintiff urges this Court to follow the binding authority of Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112. However, as indicated above, Jensen is distinguishable. In Jensen, the manufacturer-affiliated dealer issued a new car warranty with the plaintiff’s lease. (Id. at 119.) Those facts are not alleged here.

Accordingly, pursuant to Rodriguez, summary adjudication of the first cause of action is GRANTED.

Second and Fourth Causes of Action – Breach of Implied Warranty of Merchantability and Breach of Implied Warranty

Summary adjudication is also properly GRANTED as to Plaintiff’s claims for violations of implied warranties. Defendant was not a distributor of the Subject Vehicle and was not involved in the sale at issue. “[O]nly distributors or sellers

of used goods—not manufacturers of new goods—have implied warranty obligations in the sale of used goods.” (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399-400.) 

Summary adjudication of the second and fourth causes of action is GRANTED.

Plaintiff’s Evidentiary Objections to the Declaration of Mark Nicastro

Nos. 1-2: Overruled.