Rogel v. BMW of North America, LLC

CASE NO.: 24NNCV02900 CASE NAME: Rogel v. BMW of North America, LLC Moving Party: Defendant BMW of North America, LLC Responding Party: Plaintiff Mitzzy Rogel aka Mitzzy Karine Rogel Notice: Sufficient Ruling: DENY

BACKGROUND

This is a lemon law action. On October 20, 2019, plaintiff Mitzzy Rogel (Plaintiff) purchased the used subject vehicle from the New Century Alhambra (Dealership). (Shintaku Decl., P. 3.)

On July 15, 2024, Plaintiff filed a Complaint against defendant BMW of North America, LLC (Defendant) asserting breach of implied warranty under the Song-Beverly Act.

On December 9, 2025, Defendant filed the instant motion seeking summary judgment against Plaintiffs as to the only cause of action for breach of express warranty under the Song-Beverly Act.

On July 24, 2026, Plaintiff filed an opposition.

On August 3, 2026, Defendant filed a reply.

Hearing for the instant motion was continued once on February 9, 2026, again on March 9, 2026, and again on June 17, 2026.

EVIDENTIARY OBJECTIONS

With the reply papers, Defendant submitted evidentiary objections to the evidence offered by Plaintiff in opposition to Defendant's motion. However, as Defendant has failed to meet their initial burden in the motion for summary judgment, the opposing papers have not been substantively reviewed and do not impact the Court's decision.

LEGAL STANDARD

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: "(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue."¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

"[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact."¿(Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿When a plaintiff seeks summary judgment, the plaintiff must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., Sec. 437c(p)(1).)

The plaintiff is not required to disprove any affirmative defenses to discharge this burden. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564-65.)¿ If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Code Civ. Proc., Sec. 437c, subd. (p)(2); see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

"Once the [moving party] ... has met that burden, the burden shifts to the [non-moving party] ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Code Civ. Proc., Sec. 437c, subd. (p)(2).)

The non-moving party may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, "shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action."¿(Ibid.)¿"If the [non-moving party] cannot do so, summary judgment should be granted."¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must "liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party," including "all inferences reasonably drawn therefrom."¿(Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)

"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. [Citation.] 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.)¿Further, "the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court's evaluation of credibility. [Citation.]" (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (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 moves for summary judgment against Plaintiff's first cause of action for breach of express written warranty under the Song-Beverly Act on the grounds that the subject vehicle is a used vehicle which does not fall under the protection of the Song-Beverly Act.

Breach of Express Written Warranty - Song-Beverly Act

Every manufacturer of consumer goods sold in this state and for which the manufacturer has made an express warranty shall, "if unable to service or repair a new motor vehicle...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, Sec. 1793.2(d)(2).)

A "new" motor vehicle is defined by statute as a "motor vehicle sold with a manufacturer's new car warranty." (Civ. Code, Sec. 1793.22(e)(2).)

The California Supreme Court held that a used 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 section 1793.22, subdivision (e)(2)'s definition of "new motor vehicle" unless the new car warranty was issued with the sale. (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 197.)

Moving Party's Burden

Defendant argues that Plaintiff's used vehicle was not sold to her with a new car warranty but instead sold with what remained of the new vehicle warranty of the previous owner and does not qualify as a new vehicle pursuant to Rodriguez. (Mot., p. 5.)

Defendant argues that dealer owned and demonstrator vehicles, which are explicitly considered new under section 1793.22(e)(2), differ from vehicles like the subject vehicle because although they have miles on them, they are sold with a new car warranty. (Ibid.)

Defendant points out that the subject vehicle was a BMW NA employee executive vehicle identified as used, not advertised as a demonstrator vehicle, and was not sold with a new vehicle warranty. (Mot., p. 6.)

Defendant argues that the subject vehicle was sold with what remained of the new vehicle warranty which began on May 28, 2019. (Ibid.)

Defendant argues that Rodriguez does not require that a vehicle be sold by an independent third-party dealership to be deemed used and exempt from the Song-Beverly Act. (Mot., p. 7.)

Here, Defendants do not establish that the subject vehicle is used and therefore not subject to the Song-Beverly Act. The Vehicle Disclosure Form identifies the subject vehicle as an "unregistered factory executive vehicle" and specifically does not note that the vehicle was previously publicly owned by a consumer. (Lin Decl., Exh. C.)

The Court in Rodriguez specifically discussed dealership held vehicles being sold with "remaining warranties" even though they had not been sold to the public and held that "a warranty in this context is a guarantee made by the manufacturer to a retail buyer. Before a sale transaction, there is no such warranty to speak of; the manufacturer or its dealer representative owns the car. The sale of a dealer-owned vehicle or demonstrator to a retail buyer is what gives rise to a new car warranty." (Rodriguez, supra, 17 Cal.5th 189, 199.)

Therefore, when the vehicle was sold to Plaintiff, even though it was advertised as carrying an unexpired manufacturer's warranty (Lin Decl., Exh. B), it carried with it a new car warranty because it had not previously been sold to a consumer. (Lin Decl., Exh. C.)

Defendant fails to establish that the vehicle is used and cannot succeed on their motion for summary judgment. Accordingly, the motion for summary judgment is DENIED.

CONCLUSION AND ORDER

Defendant BMW of North America's Motion for Summary Judgment is DENIED.

MOVING PARTY is to give notice and provide a proposed order consistent with this ruling within 5 days from this date.

Case Number: 25NNCV01149 Hearing Date: August 14, 2026 Dept: B Hon. Victor Avila, Dept B Motion to Compel Further Response to Requests for Production, Special Interrogatories, and Form Interrogatories; Request for Sanctions Hearing Date: 8/14/26