Edwin Kibby, et al. v. BMW of North America, LLC

Edwin Kibby, et al. v. BMW of North America, LLC (25CV001419) Defendant’s Motion for Summary Judgment: Plaintiffs Edwin Kibby and Justine Gamez filed this action in 2025, asserting the following causes of action for violation of the Song Beverly Consumer Warranty Act (the “Act”), arising out of their purchase of a 2019 BMW X7 on August 15, 2022:

(1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of Song-Beverly Act Section 1793.2.

Defendant BMW of North America (“BMW”) moves for summary judgment of each cause of action on the basis that each cause of action applies only to purchasers/lessors of “new motor vehicles,” and the vehicle at issue was a used vehicle. Plaintiffs oppose the motion on the basis that the complaint is not limited to portions of the Act applicable solely to new vehicles and that Plaintiffs have validly stated claims for warranty violations in connection with the purchase of a used vehicle. In the alternative, Plaintiffs request leave to amend the complaint to assert claims for warranty violations in connection with the purchase of a used vehicle.

The Motion for Summary Judgment is GRANTED without leave to amend.

The California Supreme Court held in Rodriguez v. FCA US (2025) 17 Cal.5th 189, that a used 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 the Act’s definition of “new motor vehicle” unless the new car warranty was issued with the sale. (Id. at 195–196.)

It is undisputed that Plaintiffs purchased the vehicle at issue in this case used as a Certified Preowned Vehicle from non-party dealership BMW of Monterey on August 15, 2022. It is further undisputed that the vehicle had one owner prior to Plaintiffs. It is further undisputed that the original purchaser bought the vehicle new in 2019 with New Vehicle Limited Warranty that remained in place when Plaintiff’s purchased the vehicle in 2022 and expired on April 24, 2023. It is further undisputed that Plaintiffs were not issued a new car warranty with their purchase of the used vehicle in 2019.

Each of the claims asserted by Plaintiffs in the complaint requires proof that the vehicle at issue was a “new motor vehicle” under the Act. Therefore, the undisputed facts prevent Plaintiffs from proving an essential element of each of their claims.

Although Plaintiffs assert the allegations of the complaint are broad enough to state claims under California Civil Code section 1795.5, a section of the Act which applies to used vehicles, this is not the case. Plaintiffs assert in the Opposition to the Motion on page 12:21-23, “In this case,

Plaintiffs’ Complaint expressly alleges violations of the Song-Beverly Act in its entirety, encompassing all statutory obligations under Civil Code section 1791.1, 1792.2, and 1795.5, to name a few.” However, the complaint does not allege any claims under California Civil Code section 1795.5, and instead expressly alleges that the vehicle at issue was a statutory “new motor vehicle” under California Civil Code section 1792.22 [sic – 1793.22].1

Plaintiffs’ comments in the Opposition that Defendant should have informed the court about cases regarding liability for used goods under California Civil Code section 1795.5 are unfounded, and the court finds no ethical violation on the part of defense counsel as suggested by Plaintiffs. The Complaint specifically alleges in Paragraph 8 that the causes of action are based upon the statutory definition of “new motor vehicle” pursuant to the non-existing Civil Code Section 1792.22(e)(2) [presumably meaning Civil Code Section 17923.22(e)(2)], and there are no allegations regarding “used goods” or Civil Code §1795.5. The Complaint delimits the scope of the issues on summary judgment and frames the outer measure of materiality in a summary judgment proceeding. (See Gray v. La Salle Bank, N.A. (2023) 95 Cal.App.5th 932, 946.)

For these reasons, the Motion is granted.

In the Opposition, Plaintiffs ask that the court grant leave to amend based upon a First Amended Complaint that is attached as Exhibit A to the Declaration of Sergio Cardenas. (See Opposition, page 15, lines 22-24.) However, no Exhibit A exists, and no proposed First Amended Complaint was submitted. Further, no explanation is provided in the declaration regarding why leave to amend was not sought earlier than this late stage. The Rodriguez case was decided before the complaint in this action was filed.

If Plaintiffs had viable claims regarding a used vehicle, this should have been alleged, or some explanation should have been provided for why it was not originally alleged. At least, Plaintiffs should have sought leave to amend at some point during this case. There is no further opportunity for meaningful discovery prior to the trial date, so Defendant would be prejudiced by granting the opportunity to amend. (See Huntsman-West Foundation v. Smith (2024) 104 Cal.App.5th 1117, 1133.) Finally, the information before the Court does not demonstrate that the Plaintiffs have viable claims with disputed material issues of act for violation of California Civil Code section 1795.5.

For these reasons, leave to amend is denied.

Defendant is to prepare the court’s order consistent with the tentative ruling. NOTE RE: TENTATIVE RULING This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by complying with Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9.

1 The express allegation that the vehicle at issue is a new vehicle under the Act distinguishes this case from Jamil v. Mercedez-Benz USA, LLC (C.D. Cal. 2025) 780 F. Supp.3d 957, 965, which Plaintiffs cite in support of their argument that they’ve alleged viable claims.

Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by emailing TentativeRulings@monterey.courts.ca.gov or by telephoning the Calendar Department at (831) 647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.