KUHN VS BMW OF NORTH AMERICA LLC, A LIMITED LIABILITY COMPANY

(i.e., named defendant Magee) is necessary to Plaintiff’s case, and Defendants have failed to argue how proceeding with the proposed depositions would impact trial. Thus, the Court grants the motion for this limited purpose. GRANTED AS TO DEPOSITION OF DEFENDANT MAGEE

Sanctions

Code of Civil Procedure § 2025.450(g)(2) provides that the court shall impose a monetary sanction unless it finds the party who unsuccessfully makes or opposes the motion to compel acted with substantial justification or other circumstances make the imposition of the sanction unjust.

Here, the imposition of sanctions would be unjust in light of Plaintiff’s failure to meet and confer and lack of diligence. DENIED.

2. CASE # CASE NAME HEARING NAME HEARING RE: DEMURRER ON 1ST AMENDED COMPLAINT FOR KUHN VS BMW OF NORTH PRODUCT LIABILITY (OVER $35,000) CVPS2408299 AMERICA LLC, A LIMITED OF GABRIEL M KUHN BY BMW OF LIABILITY COMPANY NORTH AMERICA LLC, A LIMITED LIABILITY COMPANY Tentative Ruling: Sustained.

Sustained without leave to amend as to the 1st cause of action. Sustained with leave to amend as to the 2nd cause of action. Plaintiff granted leave of 10 days to file their 2nd Amended Complaint. If Plaintiff fails to file their 2nd Amended Complaint within 10 days of this order becoming final, moving Defendant is to file their answer as to the remaining operative 1st Amended Complaint within 20 days of this order becoming final.

Moving defendant to provide notice pursuant to CCP 1019.5.

This is a lemon law case. On March 2, 2023, Plaintiffs Gabriel Kuhn and Lindsay Welch (“Plaintiffs”) acquired a 2020 BMW 750xi (“Subject Vehicle”) which was manufactured and/or distributed by Defendant BMW of North America, LLC (“Defendant” or “BMW”). Plaintiffs allege that the Subject Vehicle was delivered with malfunctions and nonconformities. Plaintiffs allege that Defendant knew that the Subject Vehicle contained defective components.

Plaintiffs filed their Complaint on December 26, 2024, and the operative First Amended Complaint (“FAC”) on June 16, 2026. They assert three causes of action for: (1) Violation of the Song Beverly Consumer Warranty Act—Breach of Implied Warranty; (2) Violation of Business and Professions Code § 17200; and (3) Breach of Contract against Indigo Automotive Holdings, LLC dba BMW of Palm Springs.

Defendant now demurs to the first and second causes of action. Defendant argues that there are no allegations that Plaintiffs received a new car warranty when they purchased the Subject Vehicle or that the Subject Vehicle was a new vehicle. Defendant argues that under Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 (“Rodriguez”) the Song Beverly Consumer Warranties Act (“Song Beverly Act”) applies only to new vehicle warranties. Defendant argues that the Business and Professions Code §17200 (“UCL”) cause of action is derivative of the Song Beverly Act claims.

Plaintiffs argue that the implied warranty of merchantability under the Song Beverly Act applies to used goods. Plaintiffs argue that the Subject Vehicle was Pre-Owned Certified Vehicle, which was sold with the new vehicle warranty available to Plaintiffs. Plaintiffs argue that they have stated a cause of action under the UCL because Defendant knowingly sold the Subject Vehicle with defect components and failed to cure the defects.

In its Reply, Defendant argues that Plaintiffs admit that the Subject Vehicle was “pre-owned” which is not new for the purpose of the Song Beverly Act. Defendant argues that under Rodriguez, a used vehicle sold with an unexpired manufacturer’s warranty does not qualify as new. Defendant again argues that the UCL cause of action is derivative.

Demurrer

A party may object by demurrer to a complaint on grounds that the pleading does not state facts sufficient to constitute a cause of action. (CCP §430.10(e).) For the purposes of a demurrer, the allegations in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) “In short, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.” (State of California ex rel.

Bowen v. Bank of America Corp. (2005) 126 Cal. App. 4th 225, 240.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) In granting a demurrer, courts must only consider properly pleaded or implied factual allegations that appear on the face of the complaint as well as judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Violation of the Song Beverly Act—Breach of Implied Warranty of Merchantability:

The Song Beverly Act is a remedial statute designed to protect consumers who have purchased products covered by an express warranty. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 122 disapproved on another ground in Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189.) The Song Beverly Act provides that every sale of consumer goods that are sold at retail are accompanied by the manufacturer’s and the retail seller’s implied warranty that the goods are merchantable. (Civ. Code § 1792.) “Consumer goods” are defined as “any new product or part thereof that is used, bought, or leased for use primarily for personal, family, or household purposes, except for clothing and consumables.” (Civ.

Code § 1791(a).) Civ. Code § 1795.5 discusses the obligations of a distributor or retail seller of used consumer goods. Specifically, it states: “Notwithstanding the provisions of subdivision (a) of Section 1791 defining consumer goods to mean “new” goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter” except under limited circumstances. (Civ. Code § 1795.5.)

The Song-Beverly Act distinguishes between new and used products and calibrates manufacturers' and sellers' obligations accordingly. (Rodriguez, supra, 17 Cal. 5th at 200.) The Song Beverly Act provides for remedies in the context of the sale of used goods against the seller, but “manufacturer is generally off the hook.” (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal. App. 5th 334, 339.)

Although not alleged in the Complaint, Plaintiffs argue the Subject Vehicle was not used because it was Certified Pre-Owned and was sold with a manufacturer’s warranty that was still available

to them. This argument was also made by the Plaintiffs in Rodriguez, supra, who had purchased a vehicle with a remaining powertrain warranty. The manufacturer argued that the Song Beverly Act did not apply because the vehicle was not a new vehicle. The California Supreme Court examined the statutory construction and meaning behind the phrase “new motor vehicle” and ultimately sided with the manufacturer’s interpretation of the phrase – that a new motor vehicle is one with a manufacturer’s new car warranty issued with the sale.

The Court rejected the plaintiff’s argument that the term “new motor vehicle” encompassed any vehicle sold with an unexpired manufacturer’s new car warranty. (Id. at 197-198.) Specifically, the Court held: “We conclude 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.” (Id. at 196.)

This holding also applies to the implied warranty of merchantability under the Song Beverly Act. “Under the lemon law, only distributors and retail sellers, not manufacturers, are liable for breach of implied warranties in the sale of a used car where, as here, the manufacturer did not offer the used car for sale to the public.” (Ruiz Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 389.) In Ruiz, the court found that the plaintiff failed to present any evidence that the defendant was a distributor or retailer. (Id. at 399.)

Finally, in Rodriguez, supra, the Supreme Court confirmed Ruiz as the correct approach, stating: “Further, subdivision (c) of section 1795.5 provides for implied warranties of merchantability and fitness by the distributor or retail seller, with those warranties having a shorter duration than the manufacturer's implied warranties for new products. (See Ruiz Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399, 275 Cal.Rptr.3d 618 (Ruiz Nunez) [under section 1795.5, “only distributors or sellers of used goods — not manufacturers of new goods — have implied warranty obligations in the sale of used goods”].)” (Rodriguez, supra, 17 Cal.5th at 201 [citations from original].)

Here, Plaintiffs allege that the acquired a 2020 BMW 750ix on March 2, 2023. (FAC, ¶6.) Plaintiffs do not state any facts showing that the Subject Vehicle was new when purchased. Nor does the FAC contain any facts showing that BMW was the distributor or retail seller. To the contrary, Plaintiffs allege that on March 2, 2023, they entered into a written agreement with Co-Defendant Indigo Autogroup Holdings dba BWM of Palm Springs to purchase the Subject Vehicle. (FAC, ¶38.) Thus, because Plaintiffs have not established that the Subject Vehicle was a new good under the Song Beverly Act, the Demurrer to the first cause of action must be sustained.

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In this case, it is unlikely the Plaintiffs will be able to cure the defect by pleading that the Subject Vehicle was sold as a new vehicle. As such, leave to amend will be denied. SUSTAINED WITHOUT LEAVE TO AMEND

Violation of Bus. & Prof. Code § 17200:

Bus. & Prof. Code § 17200 states that “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice. The Unfair Competition Law’s scope is broad and coverage is sweeping. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163, 180.) “[B]ecause the statute is framed in the disjunctive, a business practice need meet only one of the three criteria to be considered unfair competition.” (Wiseman Park, LLC v. Southern Glazer's Wine & Spirits, LLC (2017) 16 Cal. App. 5th 110, 129.) UCL claims must be pled with reasonable particularity. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal. App. 5th 1234, 1261.)

“An unfair business practice occurs when the practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Podolsky v. First Healthcare Corp. (1996) 50 Cal. App. 4th, 632, 647.) The unfair standard is also intentionally broad, “thus allowing courts maximum discretion to prohibit new schemes to defraud.” (Searle v. Wyndham Intl. (2002) 102 Cal. App. 4th 1327, 1334.) “A business practice is ‘fraudulent’ within the meaning of section 17200 if it is “likely to deceive the public. [Citations.]

It may be based on representations to the public which are untrue, and also those which may be accurate on some level, but will nonetheless tend to mislead or deceive.’” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal. App. 4th 1342, 1380.) Although the facts must be pled with reasonable particularity, the standard is more lenient than the standard applied to common law fraud claims. (Gutierrez supra, 19 Cal. App. 5th at 1261.)

Here, Plaintiffs allege that Defendant committed unfair business practices by (1) failing to provide repair facilities to service vehicles to conform to the express warranties reasonably close to where Plaintiffs’ vehicle was sold; (2) failing to provide their authorized repair facilities service and repair literature to allow them to conform the vehicles to the express warranties; (3) failing to inform consumers of their warranty rights on their repair orders; (4) failing to pay their authorized repair facilities for work done under the express warranty; and (5) trying to coerce Plaintiffs and other members of the public to sign confidentiality clauses. (FAC, ¶26.) The fraud claims are based on Defendants’ alleged oral misrepresentations to deceive Plaintiffs to believe that they would benefit from the purchasing a vehicle under warranty. (Id at ¶33.)

While not entirely derivative of the breach of implied warranty claim, the UCL cause of action is not pled with the requisite specificity. It is not clear what was represented regarding the warranty and who made the misrepresentation or when. Likewise, the allegations of unfair practices are vague. SUSTAINED WITH LEAVE TO AMEND.

3. CASE # CASE NAME HEARING NAME HEARING RE: MOTION TO COMPEL DEPOSITION OF PERSON MOST MARQUEZ VS DATE PALM CVPS2503063 KNOWLEDGEABLE OF DATE PALM PETROLEUM, INC'S PETROLEUM, INC. BY FELIPE MARQUEZ Tentative Ruling: No tentative ruling. Hearing will be conducted on Thursday, August 27, 2026 at 8:30 a.m. in Department PS2.

4. CASE # CASE NAME HEARING NAME NOTICE OF MOTION AND MOTION OF HERNANDEZ VS ERKIES DEFENDANT, ERKIES FAMILY FAMILY CORPORATION CVPS2505821 CORPORATION DBA ERKIES DBA ERKIES CORPORATION TO QUASH SERVICE CORPORATION OF PROCESS Tentative Ruling: Denied.

Responding party to provide notice pursuant to CCP 1019.5.

This is an alleged wrongful termination suit filed February 2026.