Judge Theresa M. Traber, Case Number: 22STCV12388, Date: 2024-06-17 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV12388, Date: 2024-06-17 Tentative Ruling

Case Number: 22STCV12388 Hearing Date: June 17, 2024 Dept: 47

RENEE LOTENERO, et al. vs BMW OF NORTH AMERICA, LLC, Case No. 22STCV12388

TENTATIVE RULINGS ON MOTIONS IN LIMINE

PLAINTIFFS’ MIL # 1 – seeking order excluding evidence, argument, and voir dire regarding any attorney advertising by Plaintiff’s attorneys.

TENTATIVE RULING: GRANTED, without opposition. 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.

PLAINTIFFS’ MIL # 2: seeking order excluding evidence and argument regarding Plaintiff’s ability to recover attorney’s fees, suggestions that the litigation is attorney-driven, or otherwise attacking or criticizing Plaintiff’s counsel.

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.

PLAINTIFFS’ MIL # 3: seeking order prohibiting argument or testimony that Defendant conformed the vehicle within a reasonable number of repair attempts because Defendant repaired a particular component.

TENTATIVE RULING: DENIED.

Plaintiffs has failed to identify any evidence he seeks to exclude. What is more, it appears to the Court that the crux of Plaintiff’s motion is not to prohibit the introduction of any evidence but rather to restrict the arguments that might be made about the controlling law and how it applies to the facts. While the Court would be inclined to restrict the parties from arguing that the Court’s jury instructions mean something other than what the law requires, a decision about that issue is premature and should be reserved to when the Court finalizes the jury instructions based on the evidence admitted at trial and makes decisions about proper closing arguments to the jury. The Court cautions the parties that neither voir dire nor opening statements are vehicles for counsel to advocate for their interpretation of the law, so both parties must avoid presenting any argument about their views of how the law applies to the facts in the case, except to say broadly that Plaintiff/Defendant believes that the evidence will show or not show that Plaintiff’s vehicle had “defects that were covered by the warranty and that substantially impaired its use, value or safety” and that the evidence will show or not show that Defendant “failed to repair the vehicle to match the written warranty after a reasonable number of opportunities to do so.” (CACI 3201.) If the parties want the Court to resolve the legal debate their briefs present before the end of trial, the Court is open to setting a hearing for doing so.

PLAINTIFFS’ MIL # 4: seeking order prohibiting argument or testimony that Plaintiff did not make sufficient efforts to ask Defendant to repurchase or replace the vehicle.

TENTATIVE RULING: GRANTED IN PART as to questions and argument about Plaintiffs’ failure to seek repurchase or replacement of the vehicle and related evidence and argument, and otherwise DENIED, without prejudice to objections raised as to similar evidence being offered.

Plaintiffs have failed to identify any specific evidence that they seek to exclude by way of this motion in limine. Presumably, at a minimum, Plaintiffs seek to bar Defendant’s inquiries about whether Plaintiffs made any requests that Defendant repurchase or replace the vehicle or whether Defendant received any requests for repurchase or replacement of the vehicle. Based on the legal authorities discussed in Plaintiffs’ moving papers, the Court prohibits any such questioning as irrelevant to the claims and defenses before the Court. While Defendant’s responses to any requests Plaintiffs made may be relevant at trial, questions seeking to elicit testimony that Plaintiff made no such requests or delayed in making them is not.

Defendant opposes the motion apparently arguing that plaintiff’s affirmative effort to obtain a buy-back or restitution is relevant here because it was advanced when there was no legitimate basis for repurchase and, thus, supports Defendant’s showing of a reasonable, good faith belief that it had no legal obligation to buy back the vehicle. But it is not the fact of Plaintiffs’ allegedly premature buy-back request or its timing that may tend to show the reasonable or good faith nature of Defendant’s belief, but rather the actual repair history of Plaintiffs’ vehicle at the time Defendant declined to repurchase. The presence or absence of any buyback request from Plaintiffs cannot bolster Defendant’s argument that it was justified in failing to provide the statutory remedy.

The motion in limine also urges the Court to approve Plaintiffs’ Special Jury Instruction regarding Defendant’s affirmative duty to replace the vehicle or pay restitution and Plaintiffs’ lack of any obligation to request these remedies. The Court is inclined to give such an instruction in some form but is open to hearing argument about this issue or set a later hearing on this proposed instruction and other disputes over substantive jury instructions.

PLAINTIFFS’ MIL # 5: seeking order prohibiting argument that Defendant is not responsible for its authorized repair facility or that they are not the agent of BMW.

TENTATIVE RULING: DENIED.

In their motion, Plaintiffs argue that BMW’s dealership should be considered Defendant’s agent for all matters related to its efforts to repair Plaintiffs’ vehicle both under the reasoning of Ibrahim v. Ford Motor Co. (1989) 214 Cal. App. 3d 878, and under generally accepted agency standards. In opposition, Defendant contends that Ibrahim holds only that the number of repair attempts undertaken by the dealership are attributable to the manufacturer and that it would be improper to conclude that a dealership is the manufacturer’s agent for all purposes and grossly unfair to attribute every stray remark of an onsite mechanic to the manufacturer. The Court tends to agree with Plaintiffs that the connection between the manufacturer and dealership is an agency relationship with respect to the latter’s repairs performed on the former’s vehicles. The repair orders and other written communications thus are generally admissible as statements of a party opponent, but there may be circumstances where statements made by mechanics or service representatives, in writing or orally, fall outside the scope of the agency relationship or should be excluded under Evidence Code § 352. Because the motion fails to identify any specific statements to be admitted, and because the opposition describes no specific comments to be excluded, the Court cannot issue an effective evidentiary order to guide the marshaling of evidence for the upcoming trial and, thus, denies the motion.

PLAINTIFFS’ MIL # 6: seeking order precluding evidence or argument regarding any claim of a disclaimer or expiration of the implied warranty.