Judge: Theresa M. Traber, Case: 19STCV41383, Date: 2025-02-14 Tentative Ruling
Case Number: 19STCV41383 Hearing Date: February 14, 2025 Dept: 47
LAOLU DAMILOLA OLADAPO vs BMW OF NORTH AMERICA, LLC, Case
No. 19STCV41383
TENTATIVE RULINGS ON MOTIONS IN LIMINE
PLAINTIFF’S MIL # 1 – seeking order excluding any
settlement discussions.
TENTATIVE RULING: GRANTED,
without opposition.
PLAINTIFF’S MIL # 2:
seeking order excluding any evidence or argument that Defendant
proposed arbitration as a resolution to
this matter.
TENTATIVE RULING: GRANTED, without
opposition, as such matters are not relevant to any claim or defense and
are potentially prejudicial and, thus, should be excluded under Evidence Code §
352. Because Plaintiff does not seek
relief under Civil Code § 1794(e) or § 1793.22, evidence of the existence or
Plaintiff’s use of Defendant’s optional arbitration program is irrelevant to
the claims raised in this case. Nor is
the existence of Defendant’s arbitration program relevant to the question of
whether its failure to repurchase or replace the vehicle was willful. The existence of this program prior to
Defendant’s failure has no probative value for the question of
willfulness. Similarly, its decision to
refer Plaintiff that program is evidence of its failure to repurchase or
replace the vehicle but says nothing about whether that failure was
willful.
PLAINTIFF’S MIL # 3: seeking order excluding evidence and argument
regarding Plaintiff’s ability to recover attorney’s fees.
TENTATIVE RULING:
GRANTED, without opposition, as such matters are not relevant to any
claim or defense and are potentially prejudicial and, thus, should be excluded
under Evidence Code § 352.
PLAINTIFF’S MIL # 4: seeking order excluding evidence and argument
regarding Plaintiff’s application for financing and financial condition.
TENTATIVE RULING:
GRANTED, without opposition, as such matters are not relevant to any
claim or defense and are potentially prejudicial and, thus, should be excluded
under Evidence Code § 352.
TENTATIVE RULING: GRANTED, without opposition, as
such matters are not relevant to any claim or defense and are potentially
prejudicial and, thus, should be excluded under Evidence Code § 352. All counsel and parties will be
introduced to prospective jurors who will be asked by the Court if they have
ever heard of or know any of the parties, lawyers or law firms and, if so, how
they came to hear of or know any of them.
The Court may inquire into any prior impressions these potential jurors
have of any of the parties or lawyers, but this questioning may be conducted
out of the earshot of other jurors, because of the potentially prejudicial
impact of negative views of individual jurors.
TENTATIVE RULING:
GRANTED, without opposition, as such matters are not relevant to
any claim or defense.
Through this
motion, Plaintiff raises the concern that Defendant will argue Plaintiff should
be denied some or all relief on his Song-Beverly Consumer Warranty Act claims
based on the contention that Plaintiff failed to give timely notice to the
seller of revocation of acceptance of the vehicle. Although the California Uniform Commercial
Code generally requires that a buyer give notice of revocation of acceptance of
goods within a reasonable time after their delivery (Comm. Code §§ 2602(1);
2607(3)(a)), the Song-Beverly Consumer Warranty Act, which contains more
stringent consumer protections, does not require rejection or revocation of
acceptance of a vehicle within a reasonable time or any time at all. (Civ. Code
§ 1793.2(d); Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297,
1301, 1310; Krotin v. Porsche Cars North America, Inc. (1995) 38
Cal.App.4th 294, 300.) As the Court of
Appeal explained in Mexia, the Commercial Code’s requirements that
revocation be given within a reasonable time after sale “do not apply to any
action brought under the Song-Beverly Act. . . . If the Legislature intended
the duration provision to impose a deadline for consumers to give notice of
defects under the Song-Beverly Act, it could easily have done so. It did not.”
(Ibid., at pp. 1307, 1310.)
PLAINTIFF’S
MIL # 7:
seeking order establishing that statements made by Defendant’s
dealership personnel (warranty agents) are non-hearsay and admissible, under
Evidence Code §§ 1220 and 1224.
In their
motion, Plaintiffs refer to evidence they will offer to prove Defendant’s
written representations that its authorized repair facilities will act on their
behalf to service and repair the subject vehicle, and Defendant has offered no
opposition to this motion. It appears to
the Court, therefore, that Defendants concede an agency relationship in the
context of maintenance and repair work done by its authorized repair
facilities, and that this is the specific context from which Plaintiff seeks to
extract statements by employees of those facilities and offer them as evidence
against Defendant. In general, the Court
agrees with Plaintiff that such statements should be considered party
admissions, subject to presentation of additional evidence about the basis for
Plaintiffs’ contention that the authorized repair facilities were represented
to be Defendant’s agents for purposes of repairs, as well as any evidence
Defendant would offer to the contrary.
That said, the question remains whether specific statements made fall
within the scope of the alleged agency.
Because the Court cannot evaluate this issue unless specific statements
are offered by Plaintiffs, the Court must grant the motion as to the general
agency proposition advanced (subject to the presentation of corroborative
evidence) and deny it as to any specific but as yet unidentified oral or
written statements to be offered for admission.
PLAINTIFF’S
MIL # 9: seeking an order prohibiting
argument or testimony Defendant’s §998 statutory offer to compromise.
TENTATIVE RULING: GRANTED, without opposition. (See Code Civ. Proc. § 998(b)(2).)
DEFENDANT’S
MIL # 11: seeking to exclude any evidence or argument
regarding concerns with the vehicle that were presented for one repair
attempt.
TENTATIVE RULING: DENIED.
Defendant’s moving papers request exclusion of problems that were
repaired after one repair effort. In its supplemental motion, filed recently,
Defendant urges the Court to exclude any repair orders that are unrelated to
the three nonconformities that impaired use, safety and/or value according to
Plaintiff’s expert, as well as any problems that were repaired within a
reasonable number of attempts.
With respect to the first type of evidence – as to concerns that were
repaired after one repair opportunity, the Court finds first that there could
be no exclusion of such evidence under Silvio v. Ford Motor Co. (2003)
109 Cal.App.4th 1205, on which Defendant relies, for Plaintiffs’ claim under
Civil Code §1793.2(b), because liability under that provision is not dictated
by the number of repair attempts but by the failure to repair a vehicle within
30 days of its presentation for repair.
Because the parties do not highlight precisely what evidence would be
offered to support this claim and, thus, could not be excluded based on
Defendant’s argument, the Court cannot make a wholesale exclusion order as
requested by Defendant.
Moreover, the Court concludes that Defendant’s reliance on Silvio
is misplaced even with respect to Plaintiff’s claim under Civil Code §
1793.2(d)(2). In Silvio, the
consumer presented his car for repair only once and, when the problem
persisted, demanded a repurchase. Based
on this factual scenario, the Court of Appeal held that the consumer had not
stated a claim under Civil Code § 1793.2(d), because that statute offers
remedies where the car 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(d)(2).) Construing the
statutory language referring to “a reasonable number of attempts,” the Court
noted that “attempts” is plural, thus requiring that more than one repair
opportunity was necessary to state a claim.
(Silvio, at pp. 1208-1209.)
Contrary to Defendant’s suggestion, the Silvio court did not rule
that there must be multiple repair opportunities for the same vehicle problem. Given the single repair visit in Silvio,
the situation posed by Plaintiffs’ experience, where they presented their
vehicle for repair of a number of problems on multiple occasions, was not even
considered in that case.
What is more, the Court agrees with Plaintiffs that the question of
whether the underlying defects confronted by Plaintiffs were related to one
another or stemmed from a single systemic failing is a factual question to be
determined by the jury based on the entire repair record for Plaintiffs’
vehicle, their testimony about the nature of the defects they experienced and
reported, expert testimony by both sides’ designated experts, and other
materials that might inform the jury’s deliberations. It would be improper, if not impossible, for
the Court to exclude certain repair visits as unrelated to others based solely
on a review of the language included in the repair orders. Such a ruling would assume the truth of all statements
in those orders and necessarily negate any contrary evidence Plaintiffs might
offer about what complaints they had and reported to the Honda mechanics. Moreover, the jury could conclude from the
evidence at trial that Plaintiffs’ vehicle was plagued with three or more
constellations of related nonconformities, including those resident in the
vehicle’s engine cooling, electrical, drivetrain and braking systems, and that
Defendant failed to repair these defects even after four or five repair
opportunities.
Nor does the Court accept Defendant’s contention that certain evidence
should be excluded based on Defendant’s assessment that all existing problems that
were covered under the warranty were repaired every time the vehicle was
brought in for service. Plaintiffs are
entitled to contest the conclusions of Defendant’s mechanics during an
individual repair visit that the underlying problem had been remedied by
proving the defects continued or resurfaced after each repair visit. In Robertson
v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th
785, 801, the Court of Appeal held that an incomplete repair of a covered
product is not sufficient for a manufacturer to meet its obligations under
Song-Beverly. Specifically, the Court of Appeal found that a manufacturer’s
repair of a leak in an RV’s plumbing apparatus did not satisfy the
manufacturer’s Song-Beverly obligations, because the repair effort did not
remedy the water damage caused by the leak itself. (Id.) Thus, the
product was not brought into conformity until all aspects of the
“nonconformity” had been cured. (Id.) Further, the Third District stated
in Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 149, that
evidence that a problem with a vehicle was fixed for a period of time but
reappeared at a later date is relevant to a determination of whether the
fundamental problem in the vehicle was ever resolved. Taken together, these
rulings suggest that a defective vehicle remains nonconforming under the
warranty, despite multiple attempts to repair the vehicle, until the defect is
conclusively repaired. Plaintiffs are
entitled to offer evidence to demonstrate that their vehicle manifested this
kind of recurring nonconformity.
The Court also credits Plaintiff’s argument that she need not demonstrate
more than one repair attempt to succeed under § 1793.2(d)(2). The current standard established in the case
law is that there must be more than one opportunity to repair the vehicle (so
two is enough to press a claim), and that the jury must make the decision
whether the number of repair opportunities given to the manufacturer under the
circumstances was reasonable. (Robertson
v. Fleetwood Travel, supra, at p. 799.)
Finally, the Court notes that a duty to repurchase or reimburse under
section 1793.2(d)(2) is triggered by the manufacturer’s inability “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.” (Emphasis
added.) While Song-Beverly refers to the
need to correct a “non-conformity” in other parts of the statute, the key
provision defining a claim under §1793.2(d)(2) does not state that here must be
a reasonable number of attempts to remedy each nonconformity, as Defendant
interprets the statute, but rather that the entire vehicle must be made to
conform to warranties after a reasonable number of attempts. While the issue is not specifically addressed
in the appellate cases cited by the parties, many courts describe the question
as one involving the repair of the entire vehicle, not remedying a particular
nonconformity, within a reasonable number of repair opportunities. (E.g., Oregel v. American Isuzu Motors,
Inc. (2001) 90 Cal. App. 4th 1094, 1103-1104; Silvio, supra,
at p. 1208.)