Judge: Peter A. Hernandez, Case: 24STCV07841, Date: 2025-03-03 Tentative Ruling
Case Number: 24STCV07841 Hearing Date: March 3, 2025 Dept: 34
Defendant BMW of North America LLC’s Motion for Summary
Judgment is GRANTED.
Background
Legal Standard
“A party may move for summary judgment
in an action or proceeding if it is contended that the action has no merit or
that there is no defense to the action or proceeding. The motion may be made at
any time after 60 days have elapsed since the general appearance in the action
or proceeding of each party against whom the motion is directed or at any
earlier time after the general appearance that the court, with or without
notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd.
(1)(a).)
“[T]he party moving for summary
judgment bears the burden of persuasion that there is no triable issue of fact
and that he is entitled to judgment as a matter of law. That is because of the
general principle that a party who seeks a court’s action in his favor bears
the burden of persuasion thereon. There is a triable issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001)
25 Cal.4th 826, 850, citation omitted.)
“[T]he party moving for summary
judgment bears an initial burden of production to make a prima facie showing of
the nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima facie showing of
the existence of a triable issue of material fact.” (Aguilar, supra, at 850; Smith v. Wells Fargo
Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [applying the summary judgment
standards in Aguilar to motions for summary adjudication].)
“On a summary judgment motion, the
court must therefore consider what inferences favoring the opposing party a
factfinder could reasonably draw from the evidence. While viewing the evidence
in this manner, the court must bear in mind that its primary function is to
identify issues rather than to determine issues. Only when the inferences are
indisputable may the court decide the issues as a matter of law. If the
evidence is in conflict, the factual issues must be resolved by trial.” (Binder
v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, citation omitted.)
“The trial court may not weigh the
evidence in the manner of a fact finder to determine whose version is more
likely true. Nor may the trial court grant summary judgment based on the
court's evaluation of credibility.” (Binder, supra, at 840,
citations omitted; see also Weiss v. People ex rel. Dep’t of Transp.
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
Discussion
Defendant BMW of North America LLC (“BMW
NA”) moves for summary judgment, or in the alternative, summary adjudication of
the first through fourth causes of action in Plaintiff’s complaint.
Evidentiary Objections
The court
declines to rule on Plaintiff’s evidentiary objections, pursuant to Code of
Civil Procedure section 437c, subdivision (q) (i.e., “[i]n granting or denying
a motion for summary judgment or summary adjudication, the court need rule only
on those objections to evidence that it deems material to its disposition of
the motion”).
First Cause of Action – Violation of Civ. Code §
1793.2(d)
“The Song–Beverly Act is a remedial statute
designed to protect consumers who have purchased products covered by an express
warranty.”¿ (Robertson v. Fleetwood Travel Trailers of California, Inc.
(2006) 144 Cal.App.4th 785, 798.)¿ The Song-Beverly Act requires that “[e]very
manufacturer of consumer goods sold in this state and for which the
manufacturer has made an express warranty shall: [¶] (1)(A) Maintain in this
state sufficient service and repair facilities reasonably close to all areas
where its consumer goods are sold to carry out the terms of those warranties or
designate and authorize in this state as service and repair facilities
independent repair or service facilities reasonably close to all areas where
its consumer goods are sold to carry out the terms of the warranties.”¿ (Civ.
Code, § 1793.2(a).)¿
For motor vehicles specifically, “[i]f the
manufacturer or its representative in this state is unable to service or repair
a new motor vehicle, as that term is defined in paragraph (2) of
subdivision (e) of Section 1793.22, to conform to the applicable express
warranties after a reasonable number of attempts, the manufacturer shall either
promptly replace the new motor vehicle in accordance with subparagraph (A) or
promptly make restitution to the buyer in accordance with subparagraph (B).”¿
(Civ. Code, § 1793.2(d)(2) [emphasis added].)¿
“For new
products, liability extends to the manufacturer; for used products, liability
extends to the distributor or retail seller and not to the manufacturer, at
least where the manufacturer has not issued a new warranty or played a
substantial role in the sale of a used good.” (Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189, 448.)
For
purposes of Civil Code section 1793.2(d), the term “‘[n]ew motor vehicle’ means
a new motor vehicle that is bought or used primarily for personal, family, or
household purposes. ‘New motor vehicle’ also means a new motor vehicle with a
gross vehicle weight under 10,000 pounds that is bought or used primarily for
business purposes by a person, including a partnership, limited liability
company, corporation, association, or any other legal entity, to which not more
than five motor vehicles are registered in this state.” (Civ. Code, §
1793.22(e)(2).) “[O]ther motor vehicle sold with a manufacturer’s new car
warranty” means “a vehicle for which a manufacturer’s new car warranty is
issued with the sale.” (Rodriguez, supra, at 206.) Under Song-Beverly, a
manufacturer is “generally off the hook” for used vehicles. (Kiluk v.
Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 339.)
BMW NA argues that Plaintiff does not
have a remedy under the Song-Beverly Act as Plaintiff purchased a vehicle with
only a balance of the original manufacturer’s
warranty which is not considered to be a “new motor vehicle” pursuant to Rodriguez
v. FCA US, LLC (2024) 17 Cal.5th 189. (MSJ, at p. 6.)
In opposition, Plaintiff argues that,
under Rodriguez, dealer-owned vehicles are classified as “new motor
vehicles” for purposes of the Song-Beverly Act when sold with a manufacturer's
new car warranty issued at the time of sale, distinguishing them from used
vehicles with remaining warranty balances. (Opp., at p. 5.) Plaintiff cites Jensen v. BMW of N. Am., Inc., (1995) 35 Cal. App. 4th 112, 119
to argue that "used" car owners are entitled to the protections of
the Song-Beverly Act as a “used” car purchased from a retail seller with a
balance remaining on its manufacturer's warranty is considered a “new motor
vehicle” within the meaning of the Song-Beverly Act, and thus is entitled to
its protections. (Id., at p. 6.) As such, Plaintiff contends that the
decision in Rodriguez does not conflict with the principles established
in Jensen regarding dealer demonstrators. (Id., at p. 7.)
On February
20, 2023, Plaintiff purchased a 2021 BMW X4 M40i VIN 5UX2V5C07M9G72854
(“Subject Vehicle”) with 31,375 miles from dealer Pacific BMW who had purchased
the Subject Vehicle from BMW NA at an auction. (Undisputed Material Fact
(“UMF”), Nos. 1, 4, 6.) Prior to the sale, BMW NA had issued the Subject
Vehicle to an employee to use during the scope of their employment from May 11,
2021 to December 23, 2022. (Id., No. 3.) As such, the New Vehicle
Limited Warranty for the Subject Vehicle began on May 11, 2021, the same day
that BMW NA put the Subject Vehicle into service for the first time. (Id.,
No. 2.) Moreover, when Plaintiff purchased the Subject Vehicle, she was not
provided with a new car warranty. (Id., No. 9.)
In Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112 the Court of Appeal
held that a used or pre-owed motor vehicle that is sold or leased with any
balance remaining on the manufacturer's new motor vehicle warranty is also
included within the Song-Beverly Act’s definition of “new motor vehicle.” (Id.,
at 113.)
In Rodriguez v. FCA US, LLC
(2022) 77 Cal.App.5th 209, the Court of Appeal held that used vehicles,
purchased from a retail seller unaffiliated with manufacturers, do not
statutorily qualify as new motor vehicles, when there is a balance remaining on
manufacturers’ warranties. (Id., at 223-224.) The California Supreme
Court granted review, and on October 31, 2024, published its opinion, Rodriguez
v. FCA US, LLC (2024) 326 Cal.Rptr.3d 440.
The California Supreme Court affirmed
the Court of Appeal’s opinion in Rodriguez v. FCA US, LLC (2022) 77
Cal.App.5th 209 and disapproved of Jensen, holding that a motor vehicle
purchased with an unexpired manufacturer's new car warranty does not qualify as
a motor vehicle sold with a manufacturer's new car warranty under the
Song-Beverly Consumer Warranty Act’s definition of “new motor vehicle” unless
the new car warranty was issued with the sale. (Id., at 443-450.)
As an initial matter, Plaintiff’s
responsive separate statement does not comply with California Rules of Court,
rule 3.1350(f)(2). While Plaintiff has disputed many of BMW NA’s material
facts, Plaintiff’s responses fail to actually provide the nature of the
dispute. Instead, Plaintiff’s responses either amount to legal conclusion or
legal argument. Thus, because these responses insufficiently prove the nature
of the dispute, the court finds the “disputed” facts by Plaintiff to be
undisputed.
As
such, BMW NA has met their burden to show that there is no triable issue of
fact that Plaintiff is not entitled to Song-Beverly protections as it is
undisputed that the Subject Vehicle is used and that BMW NA did not issue a new
or additional warranty to Plaintiff. (UMF, Nos. 2, 5, 6, 9.) Plaintiff also fails
to provide any evidence that BMW NA provided any new or additional warranty
coverage to Plaintiff with the purchase of the Subject Vehicle upon review of
the exhibits provided by Plaintiff. (Rabadi Decl., Exh. 1.) As such, the
Subject Vehicle is not “new”.
As the
court finds there is no triable issue of material fact regarding whether the Subject
Vehicle qualifies as a motor vehicle sold with a manufacturer's new car
warranty under the Song-Beverly Act’s definition of “new motor vehicle,” the court
finds, pursuant to the California Supreme Court’s decision in Rodriguez,
that there is no triable issue of material fact as to whether BMW NA, the
manufacturer but not the distributor of the Subject Vehicle to Plaintiff, can
be liable under the Song-Beverly Consumer Warranty Act.
Accordingly, the court grants BMW NA’s
Motion for Summary Judgment as to the first cause of action.
Second Cause of Action – Violation of Civ. Code §
1793.2(b)
Civil Code section 1793.2(b) requires
an authorized repair facility to repair the goods to conform to the express
warranties within 30 days.¿ (Civ. Code, § 1793.2(b).)¿However, this applies for
vehicles with an express warranty from the manufacturer. (Civ. Code §
1793.2(a).)
Here, BMW NA met their burden.
Notably, there is no express warranty from BMW NA to Plaintiff. (UMF, No. 9.)
As above, Plaintiff did not meet her burden because she provided no evidence
disputing the facts.
Accordingly, the court grants BMW NA’s
Motion for Summary Judgment as to the second cause of action.
Third Cause of Action – Violation of Civ. Code §
1793.2(a)(3)
Under Civil Code section 1793.2(a)(3),
the manufacturer must “[m]ake available to authorized service and repair
facilities sufficient service literature and replacement parts to effect
repairs during the express warranty period.”
For the same reasons articulated
above, the court grants BMW NA’s Motion for Summary Judgment as to the third
cause of action.
Fourth Cause of Action – Breach of the Implied Warranty
of Merchantability
“[E]very sale of consumer goods that
are sold at retail in this state shall be accompanied by the manufacturer's and
the retail seller's implied warranty that the goods are merchantable.”¿ (Civ.
Code, § 1792; Civ. Code, § 1791.1.)¿ “ ‘“Consumer goods” means any new
product or part thereof that is used, bought, or leased for use primarily
for personal, family, or household purposes, except for clothing and
consumables.’ (§ 1791, italics added.)”¿ (Kiluk, supra, at 339.)¿¿¿
“The Song-Beverly Act provides similar
remedies in the context of the sale of used goods, except that the manufacturer
is generally off the hook: ‘Notwithstanding the provisions of subdivision (a)
of Section 1791 defining consumer goods to mean “new” goods, the obligation of
a distributor or retail seller of used consumer goods in a sale in which an
express warranty is given shall be the same as that imposed on manufacturers
under this chapter except: [¶] (a) It shall be the obligation of the distributor
or retail seller making express warranties with respect to used consumer goods
(and not the original manufacturer, distributor, or retail seller making
express warranties with respect to such goods when new) to maintain sufficient
service and repair facilities within this state to carry out the terms of such
express warranties.’ (§ 1795.5, subd. (a).)”¿ (Kiluk, supra, at 339.)¿
“[T]he assumption baked into section 1795.5 is that the manufacturer and the
distributor/retailer are distinct entities. Where the manufacturer sells
directly to the public, however, it takes on the role of a retailer.”¿ (Kiluk,
supra, at 340.)¿ Thus, “in the sale of used consumer goods, liability for
breach of implied warranty lies with distributors and retailers, not the
manufacturer, where there is no evidence the manufacturer played any role in
the sale of the used car to plaintiff.”¿ (Nunez v. FCA US LLC (2021) 61
Cal.App.5th 385, 398.)¿¿¿
Here, BMW NA met their burden to show
that there are no triable issues of material fact. First, the Subject Vehicle
is used. (UMF, No. 6.) Second, Plaintiff purchased the Subject Vehicle from Pacific
BMW. (Id., No. 4.) The burden shifts. Plaintiff does not meet her
burden. Indeed, Plaintiff provided no additional facts that BMW NA was a
retailer, a distributor, or was otherwise involved in the sale. (Id., No.
8.) Since the Subject Vehicle was purchased by Plaintiff as a used vehicle,
only the distributor and/or retailer can be liable for a breach of express
warranty.¿ (Nunez, supra, at 398.) As such, summary judgment is
proper.
Accordingly, the court grants BMW NA’s
Motion for Summary Judgment as to the fourth cause of action.
Conclusion
Defendant BMW of North America LLC’s
Motion for Summary Judgment is GRANTED.