Timothy Young v. BMW of North America, LLC

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 10 Honorable Jeffrey B. El-Hajj Blanca Than, Courtroom Clerk 191 North First Street, San Jose, CA 95113

DATE: August 20, 2026 TIME: 9:00 A.M. To contest the ruling, call (408) 808-6856 before 4:00 P.M. Make sure to let the other side know before 4:00 P.M. that you plan to contest the ruling. (Cal. Rules of Court, rule 3.1308(a)(1); Local Rule 8.D.)

**Please specify the issue to be contested when calling the Court and counsel**

Line 5 25CV474539 Wells Fargo Bank, N.A. v. Click LINE 5 or scroll down for ruling. Andrew Tajvar Line 6 25CV479669 Daniel Scholl v. Amiel Defendant Wade Litigation, APC’s motion to compel the Wade et al. deposition of plaintiff Daniel Scholl. (Code Civ. Proc., § 2025.450.) Notice is proper and the motion is opposed by plaintiff. (The court did not review plaintiff’s unauthorized supplemental opposition.) Plaintiff has failed to appear for a deposition on two occasions. The court finds no substantial justification for those failures to appear.

The motion is GRANTED. Plaintiff must sit for a deposition no later than September 18, 2026. Plaintiff is ordered to pay defendant $1,536 in sanctions no later than September 18, 2026. That amount consists of the $60 motion filing fee plus court reporter costs actually incurred by plaintiff’s failure to appear at the two scheduled depositions (evidenced by invoices attached to defense counsel’s declaration). The court will prepare the order. Line 7 25CV479981 Zechariah Senior v. Zaher Click LINE 7 or scroll down for ruling.

Lopez et al. Line 8 23CV423619 Timothy Young v. BMW of Click LINE 8 or scroll down for ruling. North America, LLC

- oo0oo -

Calendar Line 8 Case Name: Timothy Young v. BMW of North America, LLC Case No.: 23CV423619

Plaintiff Timothy Young filed this Song-Beverly Consumer Warranty Act action against defendant BMW of North America, LLC, based on alleged defects in a used 2018 BMW 530E (subject vehicle). The court (Judge Chung) previously granted defendant’s motion for judgment on the pleadings with leave to amend.

At issue is defendant’s demurrer to the first amended complaint (FAC). The demurrer was set for hearing on August 11, 2026. The court granted plaintiff’s ex parte application to continue the hearing to allow defendant an opportunity to review plaintiff’s untimely opposition. The court also ordered plaintiff’s counsel to be prepared to show cause why he should not be sanctioned for his repeated failure to comply with filing deadlines; this is the second time plaintiff has failed to timely oppose a motion in this case. Defendant did not file a reply brief. Trial is set for September 14, 2026.

The FAC alleges plaintiff purchased the subject vehicle in November 2021 as a BMW Certified used car “which was manufactured, distributed, or sold by Defendants BMW of North America, LLC,” and Doe defendants. (FAC, ¶ 4.) The FAC alleges plaintiff received an express one-year warranty, the “ ‘BMW Certified Protection Plan [that] provides specific coverage against defects in materials and workmanship.’ ” (FAC, ¶ 7.) The FAC alleges, “Pursuant to Civil Code section 1795.5, the obligation BMW has here, as the distributor or retail seller of used consumer goods in a sale in which an express warranty is given, is the same as that imposed on manufacturers under the Song-Beverly Consumer Warranty Act.” (Ibid.)

The FAC alleges 11 causes of action: (1) breach of the implied warranty of merchantability; (2) breach of an express warranty; (3) failure to promptly repurchase product; (4) failure to maintain sufficient service and repair facilities; (5) failure to make service literature and parts available; (6) advertising defective merchandise without disclosing defects (Bus. & Prof. Code, §§ 17531, 17535); (7) conversion; (8) negligence; (9) violation of Civil Code section 1796.5; (10) breach of express warrant (Magnuson-Moss Warranty Act; 15 U.S.C. § 2301 et seq.); and violation of the Consumer Legal Remedies Act (Civ. Code, § 1750).

DEMURRER LEGAL STANDARD

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (See Cal.

Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

The court cannot consider extrinsic evidence when ruling on a demurrer. That includes declarations. The court has considered the declaration from defense counsel only to the extent it discusses the meet and confer efforts required by statute. The court has not considered the attached exhibits. Finally, “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273.)

DISCUSSION

First through Fifth Causes of Action – Civ. Code, § 1795.5

Defendant argues the first through fifth causes of action fail to state sufficient facts to constitute a cause of action under the reasoning of Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189 (Rodriguez) because plaintiff purchased the subject vehicle as a used car. (Demurrer MPA, pp. 2-4.)

Civil Code section 1795.5 governs the obligations of a distributor or retail seller of used consumer goods in which an express warrant is given. (Unspecified statutory references are to the Civil Code.) The obligation is “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.”; (b) “The provisions of Section 1793.5 [failure to provide service and repair facilities within the state] shall not apply to the sale of used consumer goods sold in this state.”; (c) “The duration of the implied warranty of merchantability and where present the implied warranty of fitness with respect to used consumer goods sold in this state, where the sale is accompanied by an express warranty, shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable, but in no event shall such implied warranties have a duration of less than 30 days nor more than three months following the sale of used consumer goods to a retail buyer.”; (d) “The obligation of the distributor or retail seller who makes express warranties with respect to used goods that are sold in this state, shall extend to the sale of all such used goods, regardless of when such goods may have been manufactured.” (§ 1795.5.)

Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334 (Kiluk) involved application of section 1795.5 to the “sale of a certified preowned Mercedes Benz that still had a portion of the new vehicle warranty remaining, and which was accompanied by an additional used vehicle warranty issued by the manufacturer.” (Id. at p. 336.) The manufacturer argued section 1795.5 did not apply because the section exempts manufacturers. The Kiluk court reasoned that where a manufacturer sells directly to the public, it takes on the role of a retailer.

The court noted that “Mercedes Benz partnered with a dealership to sell used vehicles directly to the public by offering an express warranty as part of the sales package, which is a crucial incentive for buyers like plaintiff.” In finding that section 1795.5 applied to the manufacturer, the court reasoned that by “partnering with the dealership, Mercedes Benz stepped into the role of a retailer and was subject to the obligations of a retailer under section 1795.5.” The court affirmed a jury verdict regarding breach of an express warranty under section 1793.2.

Here, the FAC cites section 1795.5 and alleges that defendant provided an express warranty for the used car, referred to as the BMW Certified Protection Plan. Under the reasoning of Kiluk, which defendant’s demurrer does not cite or discuss, plaintiff’s action is not barred.

Defendant relies on Rodriguez. The Rodriguez court determined 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 [Civil Code] section 1793.22, subdivision (e)(2)’s definition of new motor vehicle unless the new car warranty was issued with the sale.” (Rodriguez, supra, 17 Cal.5th at p. 196.) That court did not address the situation presented here, a used car sold with an express warranty separate from the new car warranty. The demurrer to the first five causes of action based on Rodriguez is overruled.

First Cause of Action – Breach of Implied Warranty of Merchantability

Defendant argues the first cause of action fails to state sufficient facts to constitute a cause of action because there is no implied warranty for used cars. (MPA, p. 5.) But section 1795.5, subdivision (c), discusses the duration of the implied warranty of merchantability regarding used consumer goods. Plaintiff can proceed under that section. The demurrer to the first cause of action is overruled.

Fourth Cause of Action – Failure to Maintain Sufficient Service and Repair Facilities

Defendant argues the fourth cause of action fails to state sufficient facts to constitute a cause of action because it is not pleaded with particularity. (MPA, p. 6.)

Statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) The fourth cause of action is not pleaded with particularity. It merely alleges that defendant failed to maintain sufficient service centers without providing the particularity required for statutory causes of action. It is also inconsistent with earlier allegations of the FAC regarding plaintiff’s attempts to have the subject vehicle repaired. Those more specific allegations discuss plaintiff taking the subject vehicle to authorized repair facilities. None describe any difficulty finding an authorized repair facility. (FAC, ¶¶ 11-14.) The demurrer to the fourth cause of action is sustained. Further leave to amend is denied based on a failure to demonstrate a reasonable possibility of amendment.

Fifth Cause of Action – Failure to Make Service Literature and Parts Available

Defendant argues the fifth cause of action fails to state sufficient facts to constitute a cause of action because it is not pleaded with particularity. (MPA, p. 7.)

The fifth cause of action suffers from the same defect as the fourth cause of action. It is not pleaded with particularity, and the more specific allegations in the FAC do not describe any failure to make service literature and parts available. The demurrer to the fifth cause of action is sustained. Further leave to amend is denied based on a failure to demonstrate a reasonable possibility of amendment.

Sixth Cause of Action – False Advertising

Defendant argues the sixth cause of action fails to state sufficient facts to constitute a cause of action because the challenged statement is not an advertisement; plaintiff failed to properly allege injury; and injunctive relief is not available as a remedy under the Song- Beverly Consumer Warranty Act.

The sixth cause of action alleges a violation of California’s false advertising law. (Bus. Prof. Code, § 17500 et seq.) The sixth cause of action focuses on Business and Professions Code section 17531, which makes it unlawful for anyone to advertise the sale of defective merchandise without disclosing that the merchandise is defective. (Bus. & Prof. Code, § 17531 [“It is unlawful for any person, firm, or corporation . . . to advertise, call attention to or give publicity to the sale of any merchandise . . . unless there is conspicuously displayed directly in connection with the name and description of that merchandise and each specified article, unit, or part thereof, a direct and unequivocal statement, phrase, or word which will clearly indicate that the merchandise or each article, unit, or part thereof so advertised is secondhand, used, defective, or consists of ‘seconds’ or is blemished merchandise, or has been rejected by the manufacturer thereof, as the case may be.”].)

The court previously granted judgment on the pleadings as to the false advertising cause of action in the original complaint because it found the complaint’s boilerplate allegations did little more than repeat the language of the code section. The FAC’s sixth cause of action remains deficient. The sixth cause of action alleges that plaintiff was provided with (1) a BMW Certified Unlimited Mileage Statement of Certification and Coverage, and (2) a BMW Certified Vehicle Inspection Checklist. The fatal deficiency in the sixth cause of action is that the documents plaintiff received related to the subject vehicle unequivocally indicated that the vehicle was used, thereby satisfy Business and Professions Code section 17531. The demurrer to the sixth cause of action is sustained. Further leave to amend is denied based on a failure to demonstrate a reasonable possibility of amendment.

Tenth and 11th Causes of Action – Improper New Causes of Action

“ ‘Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order.’ ” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) “ ‘The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.’ ” (Ibid.)

The original complaint did not allege violations of the Magnuson-Moss Warranty Act or the Consumer Legal Remedies Act, which are the bases for the FAC’s 10th and 11th causes of action, respectively. The court’s order granting judgment on the pleadings did not grant leave to add new causes of action, and plaintiff did not obtain permission to do so. The demurrer to the 10th and 11th causes of action is sustained without leave to amend.

CONCLUSION

The demurrer to the first, second, and third causes of action is OVERRULED.

The demurrer to the fourth, fifth, sixth, 10th, and 11th causes of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Trial remains as set for September 14, 2026.

The court will prepare the order.

- oo0oo -

22