Emtiaz vs. BMW of North America, LLC

First Cause of Action for Violation of Song-Beverly Consumer Warranty Act – Breach of Express Warranty

Civil Code section 1793.2, subdivision (d) states, “Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.” “Generally, ‘[w]he[n] a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The Complaint must plead every fact which is essential to the cause of action under the statute.” (Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207.)

The Complaint alleges that Plaintiffs are the beneficiary of a transferable express warranty attached to the Subject Vehicle by BMW NA, by which BMW NA undertook to preserve or maintain the utility or performance of the Subject Vehicle or provide compensation if there was a failure in such utility or performance during the warranty period. (Compl. ¶ 11.) On or about August 30, 2024, and continuing throughout the warranty period, Plaintiffs brought the Subject Vehicle to authorized BMW NA repair facilities on at least three occasions complaining about problems with the Subject Vehicle’s HVAC System. (Id. at ¶ 15.)

Specifically, the HVAC would not blow cold air. (Id.) This resulted in a safety hazard because Plaintiffs are residents of Orange County, California. (Id.) At least two components of the HVAC have been removed and replaced at the time of the Complaint’s filing. (Id.) The repair attempts did not resolve the issues complained about, and the issues with the HVAC system continue to cause impairments to the use, value, and safety of the Subject Vehicle. (Id. at ¶¶ 19, 21.) BMW NA rejected Plaintiff’s request for repurchase under the Song-Beverly Consumer Warranty Act. (Id. at ¶ 20.)

Although the allegations are not particularly artful, Plaintiffs have alleged the existence of an express warranty, that BMW NA failed to repair the vehicle after three repair attempts, and that BMW NA rejected Plaintiff’s repurchase request. Defendants’ factual arguments may be raised at later stages of the litigation. These allegations are sufficient at this pleading stage. The motion for judgment on the pleadings is denied as to the first cause of action.

Second Cause of Action Violation of Song-Beverly Consumer Warranty Act – Breach of Implied Warranty

Implied Warranty & Merchantability

Under California Civil Code § 1792, “every 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.) This imposes certain guarantees about the fitness and use of the goods. “Retail seller,” for the purposes of this statute, is defined as “any individual, partnership, corporation, association, or other legal relationship that engages in the business of selling or leasing consumer goods to retail buyers.” (Civ.

Code, § 1791.) “Manufacturer” means “any individual, partnership, corporation, association, or other legal relationship that manufactures, assembles, or produces consumer goods.” (Id.) In contrast, a “distributor” is defined as “any individual, partnership, corporation, association, or other legal relationship that stands between the manufacturer and the retail seller in purchases, consignments, or contracts for sale of consumer goods.” (Id.)

BMW NA contends it does not have an implied warranty obligation under Civil Code section 1792 because it was neither the “retail seller” nor “manufacturer” of the Subject Vehicle. Rather, BMW NA is the “distributor.” In support, BMW NA requests judicial notice of BMW NA’s Statement of Information filed with the State of California. (See RJN [ROA 44); McGregor Decl. ¶ 4, Exh. 1 [ROA 46].) The Statement of Information lists “Importer/wholesaler of motor vehicles, motorcycles, parts and accessories” as BMW NA’s “Type of Business.” (Id.)

California appellate courts have not addressed whether distributors have obligations for an implied warranty of merchantability under the Song- Beverly Act. However, focusing on the plain text of the statute, the obligation only extends to manufacturers and retailers. (Civ. Code, § 1792.) Plaintiff would have the Court read the word “distributors” into the text of the statute, but the Court cannot insert language the Legislature omitted from a statute. (Code Civ. Proc., § 1858.)

Additionally, while no published California appellate decision has directly adjudicated whether an importer/wholesaler is exempt from § 1792 in the context of new goods, several decisions provide strong support for BMW NA’s argument. (See Rodriguez v. FCA US LLC (2024) 17 Cal. 5th 189 [explaining that "for new products, liability extends to the manufacturer; for used products, liability extends to the distributor or retail seller and not to the manufacturer . . .]; Mega RV Corp. v. HWH Corp. (2014) 225 Cal. App. 4th 1318 [holding that the term "manufacturer" in Section1792 "does not include every component-part manufacturer contributing parts or components to a consumer good" reasoning that extending §

1792 to every entity in the distribution chain "would be impractical and unfair" resulting in confusion for consumers, retail sellers, and the various entities in the manufacturing process]; Ruiz Nunez v. FCA US LLC (2021) 61 Cal. App. 5th 385 ["only distributors or sellers of used goodsnot manufacturers of new goods-have implied warranty obligations in the sale of used goods" under § 1795.5].) This formulation — which assigns § 1792 liability for new goods to the manufacturer, and § 1795.5 liability for used goods to the distributor or retail seller — provides context for understanding how the Act allocates warranty responsibilities among manufacturers, retail sellers, and distributors.

Based on this analysis, the Court concludes that Civil Code section 1792 is limited to only retail sellers and manufacturers. Given the judicially noticeable Statement of Information, and the fact that the Complaint does not sufficiently allege BMW NA is a manufacturer (Compl. ¶ 26.), the Court finds that BMW NA is not a “manufacturer”. Thus, the implied warranty of merchantability does not apply to BMW NA.

Implied Warranty of Fitness for a Particular Purpose

Civil Code section 1792.2 provides: “Every sale of consumer goods that are sold at retail in this state by a retailer or distributor who has reason to know at the time of the retail sale that the goods are required for a particular purpose, and that the buyer is relying on the retailer’s or distributor’s skill or judgment to select or furnish suitable goods shall be accompanied by such retailer’s or distributor’s implied warranty that the goods are fit for that purpose.” “ ‘A “particular purpose” differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. [Citation.]’ ” (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, n.2.)

The Complaint alleges that the Subject Vehicle “constitutes ‘consumer goods’ used primarily for family or household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes.” (Compl. ¶ 24.) The Complaint further alleges BMW NA and its authorized dealerships “had reason to know the purpose of the Subject Vehicle when Plaintiffs took possession of the Subject Vehicle.” (Id. at ¶ 43.) Even when construed liberally the Complaint fails allege facts to support BMW NA’s knowledge that the Subject Vehicle was required for a particular purpose at the time of purchase or that Plaintiffs relied on BMW NA’s skill or judgment to furnish suitable goods.

The motion for judgment on the pleadings is granted as to the second cause of action with leave to amend.

Third Cause of Action for Negligent Repair

Plaintiffs concede the third cause of action for negligent repair is barred by the economic loss rule. (Opp. at 12:14-17 [ROA 52].) The motion for judgment on the pleadings is granted as to the third cause of action without leave to amend.

Defendants to give notice.

60 Ardakani vs. Youderian

24-01374912 Motion for Summary Judgment and/or Adjudication

Defendants’ motion for summary judgment is GRANTED as to Defendant Joshua Icasas, PA-C, and DENIED as to Defendant Ari Youderian, M.D.

Surreply (ROA 217): The Court exercises its discretion under California Rules of Court, rule 3.1300(d), and declines to consider Plaintiffs’ surreply, which was filed three days before the hearing without leave of court. (See Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)

Plaintiffs’ Evidentiary Objections to the Declaration of Nicholas Rose, M.D., FAAOS, FACS (ROA 208): 1. Overruled.

2. Sustained as to “femoral fracture.”

3. Overruled.

Defendants’ Evidentiary Objections to the Declaration of John G. Stark, M.D., P.A. (ROA 213): 1. Overruled.

2. Overruled.

3. Sustained.

4. Overruled.

5. Overruled.

6. Overruled.

7. Overruled.

Legal Authority:

“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.” (Code Civ. Proc., § 437c, subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A cause of action has no merit if one of the elements of the cause of action cannot be separately established. (Code Civ. Proc., § 437c, subd. (o)(1).) Consequently, a defendant who establishes that an element cannot be established, has met its moving burden on a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (p)(2).) Thereafter, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination.” (Code Civ. Proc., § 437c, subd. (g).) “The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.” (Ibid.) “The court shall record its determination by court reporter or written order.” (Ibid.)

“[I]n ‘ “any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.’ ” ’ ” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)

In a medical malpractice action, it has consistently been held that “a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of the layman.” (Id. at p. 410.)

For medical malpractice claims, “the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused the injury to the plaintiff. [Citation.] ‘ “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless