Mohagen vs. BMW of North America, LLC

Not quite. The third cause of action for failure to prevent harassment focuses on Esmailian’s conduct. (Complaint, ¶ 62 [“62. At all times relevant to this action, Defendant ESMAILIAN severely and pervasively engaged in unwelcome overtures, racial epithets and unwanted verbal comments based on race with Plaintiff.”].) The remaining causes of action assert discrimination or retaliation for Plaintiff’s alleged reporting of Esmailian’s conduct. (See, e.g., Complaint.) More importantly, however, the Court’s order compelling Esmailian to arbitrate was based on principles of agency and equitable estoppel. Esmailian has not established that Plaintiff’s agency allegations are false as a matter of law. Esmailian does not provide a sufficient basis to set aside the Court’s October 8, 2025, order.

Plaintiff to give notice.

14 Colligan vs. OFF CALENDAR So-Cal Boys Restaurant Group Inc. 15 Mohagen vs. TENTATIVE RULING: BMW of North America, LLC For the reasons set forth below, Defendant BMW of North America, LLC’s (“BMW” or “Defendant”) motion for summary judgment/adjudication is GRANTED.

Preliminarily, both Plaintiff’s opposition and BMW’s reply were untimely. The Court exercises its discretion to consider the untimely opposition and reply.

Statement of Law

“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 “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc.

§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present ‘evidence’."”(Aguilar, supra, 25 Cal.4th at 855, italics original.)

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Dix v. Live Nation Entertainment, Inc. (2020) 56 Cal.App.5th 590, 604 [where the evidence presented by defendant does not meet its burden, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.]).

If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar, supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances . . ., ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083- 1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843, citations omitted.) Courts “‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment, and all evidentiary conflicts are to be resolved

against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) “[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

1ST-3RD CAUSES OF ACTION FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT – EXPRESS WARRANTY

Defendant argues that these causes of action fail because: (1) The Complaint is based on the allegation that Plaintiff was given a new car warranty at the time of her purchase, (2) Plaintiff purchased a used vehicle, (3) she did not receive any new or additional warranty coverage from BMW when she bought the Subject Vehicle used from Crevier, she received only the unexpired balance of coverage remaining under the Warranty that BMW issued when the vehicle was delivered new to the original owner, and (4) BMW was not a party to Plaintiff’s purchase.

Defendant cites to Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 in support of its arguments that it is entitled to summary adjudication as to the first through third causes of action for violation of the Song- Beverly Consumer Warranty Act - express warranty.

The Song-Beverly Consumer Warranty Act provides buyers of new motor vehicles with specific remedies when a vehicle turns out to be defective. (Civ. Code, § 1791 et seq.) Section 1793.2 sets forth obligations for manufacturers of consumer goods for which the manufacturer has made an express warranty. For example, Section 1793.2, subdivision (d)(2) gives new car buyers what is known as a refund-or-replace remedy: It requires manufacturers to “promptly replace” a defective new motor vehicle or “promptly make restitution” to the buyer when the manufacturer is “unable 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.”

The primary holding in Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 is 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 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, 196.) The court held that “the phrase ‘other motor vehicle sold with a manufacturer’s new car warranty” — considered in the context of the surrounding text of section 1793.22, subdivision (e)(2) and in the broader context of the Song-Beverly Act’s provisions distinguishing between new and used goods — means a vehicle for which a manufacturer’s new car warranty is issued with the sale.” (Id., at 206.)

Thus, to be considered a new motor vehicle under the Act, a “new car” warranty must have been “issued with the sale” of the vehicle. (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 198 [emphasis in original] and 199-200 [“the phrase ‘other motor vehicle sold with a manufacturer's new car warranty’ is most naturally understood to mean other vehicles for which such a warranty is issued with the sale. (§ 1793.22, subd. (e)(2).)”].)

In issuing a “new car” warranty to a vehicle that is not technically new, “manufacturers (or their dealer-representatives) treat them as such upon sale by providing the same type of manufacturer’s warranty that accompany new cars.” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 198 [citing Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 220, aff'd (2024) 17 Cal.5th 189].)

“[S]ection 1795.5, which governs used goods, makes clear that the same warranty protections that consumers of new products have against manufacturers apply to consumers of used products against distributors or retail sellers ‘in a sale in which an express warranty is given.’” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 202.) “In other words, just as with new products, the Act’s remedies for failure to repair a used product in conformity with an express warranty have applicability where the express warranty accompanies the sale of the product.” (Ibid.)

“For new products, liability extends to the manufacturer; for used products, liability extends to the distributor or retail seller and not to the manufacturer, at least where the manufacturer has not issued a new warranty or played a substantial role in the sale of a used good.” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 202.) “In both cases, the Act’s protections are premised on an express warranty arising from the product’s sale.” (Ibid.)

Additional notable citations from Rodriguez include:

• “If the Legislature had intended to define “ ‘new motor vehicle’ to include a potentially vast category of used cars” with unexpired new car warranties, “it would have been done so more clearly and explicitly than tucking it into a reference to demonstrators and dealer-owned vehicles.”” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 199.)

• “First, in enacting and amending the Song-Beverly Act, the Legislature has maintained a distinction between “new” and “used” products and has specified the warranty protections applicable to each category. The Legislature has shown it knows how to legislate on “used” products (§ 1795.5), and it has employed clear language when it wants to make a “used” product subject to the warranty protections that apply to the product when new (see § 1791, subd. (a) [“ ‘Consumer goods’ shall include new and used assistive devices sold at retail”]).

In defining “new motor vehicle,” section 1793.22, subdivision (e)(2) does not mention “used” vehicles; the word “used” nowhere appears. This bolsters the inference that the phrase “other motor vehicle sold with a manufacturer's new car warranty” was not intended to cover any used car with an unexpired new car warranty.” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 202.)

• “Section 1793.22, subdivision (e)(2) defines ‘new motor vehicle’ to include a new vehicle ‘bought or used primarily for personal’ purposes as well as ‘a dealer-owned vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car warranty.’ ” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 195.)

• “The Song-Beverly Consumer Warranty Act provides buyers of new motor vehicles with specific remedies when a vehicle turns out to be defective.” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 195 [citing Civ. Code, § 1791 et seq.; hereafter the Act or the Song-Beverly Act; all undesignated statutory references are to the Civil Code].)

• “Section 1793.2, subdivision (d)(2) gives new car buyers what is known as a refund-or-replace remedy: It requires manufacturers to ‘promptly replace’ a defective new motor vehicle or ‘promptly make restitution’ to the buyer when the manufacturer is ‘unable 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.’ ” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 195.)

• “These enhanced remedies under the Act for breach of express warranty are ‘distinct from’ and ‘in addition to’ remedies otherwise available in contract under the California Uniform Commercial Code.” (Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189, 195 [citing Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792, 810, 811].)

Here, Defendant established that (1) Plaintiff did not receive any new or additional warranty coverage from BMW at the time of the sale when she bought the Subject Vehicle used from BMW of Buena Park, she received only the unexpired balance of coverage remaining under the Warranty that BMW issued when the vehicle was delivered new to the original owner (UMF ¶¶ 1-3, 5, 7 [and evidence cited therein]); (2) Plaintiff purchased the used Certified Pre-Owned vehicle on 2/1/22 and was given a CPO warranty (UMF ¶¶ 5-7 [and evidence cited therein]); (3) CPO warranties are only issued to used, CPO vehicles and are not new car warranties (UMF ¶¶ 6-7 [and evidence cited therein]); (4) BMW was not a party to Plaintiff’s purchase (UMF ¶ 8 [and evidence cited therein]); (5) BMW is not the manufacturer of the Subject Vehicle, but a distributor (UMF ¶ 9 [and evidence cited therein]); (6) the Complaint only alleges violations of the New Vehicle Limited Warranty (UMF ¶ 4, 10 [and evidence cited therein]).

Based upon the foregoing, Defendant BMW has met its moving burden of production and the burden shifts to the Plaintiff to make a prima facie showing of the existence of a triable issue of material fact. Plaintiff fails to meet her burden as Plaintiff failed to include any evidence in support of the opposition. For this reason alone, Defendant is entitled to judgment in its favor as to these causes of action.

Moreover, the opposition focuses on the CPO warranty that was provided to Plaintiff at the time she purchased the used vehicle. However, the Complaint and the subject violations of express warranty at issue in this action, are based on the new car warranty attached to the Complaint as Exhibit A. As established by BMW, this new car warranty was not issued at the time of Plaintiff’s purchase and a CPO warranty is not the same as a new car warranty. Instead, she received the unexpired balance of coverage remaining under the new car warranty that BMW issued when the vehicle was delivered new to the original owner. Plaintiff concedes the vehicle was a

Certified Pre-Owned vehicle and that the Subject Vehicle had one prior owner before Plaintiff purchased it.

A trial court must grant a motion for summary judgment (or, alternatively, summary adjudication) “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).) Whether a factual issue is material is determined by the pleadings which “set the boundaries of the issues to be resolved at summary judgment.” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)

The moving party's burden is to negate the theories of liability alleged in the operative pleading, not to “‘refute liability on some theoretical possibility not included in the pleadings...’” (Id. at pp. 1254–1255.) The moving party is not required “to negate elements of causes of action plaintiffs [or cross-complainants] never pleaded.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182.) It follows that a party cannot avoid summary judgment by relying on theories that are not alleged in the pleadings. (County of Santa Clara v.

Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332–333.)

The CPO warranty was not mentioned in the Complaint. Thus, Plaintiff cannot rely on the existence of an unpleaded warranty to defeat summary judgment.

Accordingly, summary judgment/adjudication is granted in Defendant’s favor as to these causes of action.

FOURTH CAUSE OF ACTION FOR VIOLATION OF THE SONG-BEVERLY WARRANTY ACT - IMPLIED WARRANTY

Defendant argues that Plaintiff’s fourth cause of action for violation of the Song-Beverly Warranty Act - implied warranty is barred because the claim depends on the Subject Vehicle being a “new motor vehicle” and thus fails for the same reasons above. Furthermore, if this claim depends on the Subject Vehicle being a used car, that claim also fails pursuant to the holding in Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399 because “Plaintiff bought the Silverado used, and he has “no evidence that [GM] was a distributor or retail seller of [the used Silverado] or in any way acted as such.”

Plaintiff cites Civ. Code § 1791.1; § 1794; and § 1795.5 in this cause of action.

Section 1791.1 states implied warranties for new consumer goods. (Id.,subd. (c).)

Section 1794 governs availability of civil penalties for breach of express or implied warranties.

Section 1795.5 governs the obligations “of a distributor or retail seller of used consumer goods” in a sale in which an express warranty is given.

Here, Plaintiff’s Compliant is premised on the allegation that Plaintiff entered into a warranty contract with BMW, as she was issued an express warranty attached to the Compliant as Exhibit A. Exhibit A is a new car warranty. As previously established, Plaintiff purchased a used car and was not issued a new car warranty at the time of her purchase of the Subject Vehicle.

Thus, Defendant is entitled to judgment on this cause of action for the same reasons stated above and the Court need to address the other arguments presented by Defendant.

Accordingly, summary judgment/adjudication is granted in Defendant’s favor as to this cause of action.

PLAINTIFF’S REQUEST FOR LEAVE TO AMEND

“[A] plaintiff [or cross-complainant] wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)

Although leave to amend should be liberally granted, the trial court has discretion to deny it when a party unreasonably delays making the request. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) Unreasonable delay may be found where a plaintiff seeks leave to amend only after the defendant moves for summary judgment on grounds addressed by the proposed amendment and the proposed amendment is based on facts previously known to the plaintiff. (Ibid.) “It would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176.)

Here, Plaintiff alleged violations of the express warranties provided in the new car warranty attached as Ex. A to the Complaint. The untimely opposition to the motion for summary judgment asserted that Plaintiff was given a CPO warranty with her purchase. Given that this action was initiated in 2024, the request to amend was only raised in an effort to defeat summary judgment or adjudication, and that trial is set for 10/19/26, the Court denies Plaintiff’s request for leave to amend the Complaint.

A Word of Warning

Generative artificial intelligence (AI) tools that supply natural language answers to user prompts are now in wide use. Counsel are responsible for providing the Court with complete and accurate representations of cited legal authorities. Use of generative AI is not prohibited, but counsel must personally confirm for themselves the accuracy of any research conducted by these means, and counsel alone bears ethical responsibility for all statements made in filings. The signature or listing of counsel on a filing containing AI generated content, including citations generated by AI, constitutes a certification the signer (and any attorney listed on the filing) has personally verified the content’s accuracy.

The court will impute any errors by such AI tools to the signer and any other attorney or self- represented party listed on the filing. Failure to verify the accuracy of submissions, particularly the accuracy of citations to law and evidence, may be grounds for sanctions or disciplinary action before the State Bar.

Defendant to give notice.

16 Tran vs. TENTATIVE RULING: Jaguar Land Rover North For the reasons set forth below, Defendant Jaguar Land Rover North America, LLC America, LLC’s motion for summary adjudication is DENIED as to the 8th, 9th and 10th causes of action in Plaintiff Nhu Tran’s Complaint, and GRANTED as to the 5th 6th and 7th causes of action.

Statement of Law

“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 “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .”