Demurrer
26CV164479: CRUSH SALON LLC vs BMW OF NORTH AMERICA, LLC 05/28/2026 Hearing on Demurrer DEFENDANT BMW OF NORTH AMERICA, LLCS NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIC ACHATZ; filed by BMW of North America, LLC (Defendant) CRS# 788724535943 in Department 517
Tentative Ruling - 05/26/2026 Keith Fong
The Demurrer filed by BMW of North America, LLC on 02/23/2026 is Sustained with Leave to Amend.
Defendant BMW of North America, LLCs demurrer is SUSTAINED WITH LEAVE TO AMEND.
BACKGROUND
Plaintiff Crush Salon LLC (Plaintiff) leased a 2024 BMW XM (the Subject Vehicle) on March 21, 2024. (Compl. ¶ 5.) Plaintiff alleges that the Subject Vehicle was accompanied with written warranties from Defendant BMW of North America, LLC (Defendant). (Compl. ¶ 7.) Plaintiff alleges that it delivered the Subject Vehicle to Defendants authorized service and repair facilities, agents, and/or dealers, on at least seven occasions for repairs of nonconformities. (Compl. ¶¶ 9-13.) However, Defendant or its representatives failed to conform the Subject Vehicle to applicable warranties. (Compl. ¶ 13.)
Plaintiff initiated this action on January 14, 2026. The Complaint alleges (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Act; and (2) Breach of Express Warranty under the Song-Beverly Act.
Defendant demurs to the First Cause of Action for failure to state sufficient facts to constitute a cause of action. Plaintiff opposes the demurrer.
LEGAL STANDARD
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title Ins. Co. v. Comerica Bank-California (1994) 27 Cal.App.4th 800, 807.) A plaintiff must plead facts as are necessary to acquaint a defendant with the nature, source and extent of her claims to provide defendant with notice of the issues sufficient to enable preparation of a defense. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 570.) A court should not sustain a general demurrer unless the complaint liberally construed fails to state a cause of action on any theory. (
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
On a demurrer, the court accepts the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law. (Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 276.) Facts alleged in the pleading are deemed to be 26CV164479: CRUSH SALON LLC vs BMW OF NORTH AMERICA, LLC 05/28/2026 Hearing on Demurrer DEFENDANT BMW OF NORTH AMERICA, LLCS NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIC ACHATZ; filed by BMW of North America, LLC (Defendant) CRS# 788724535943 in Department 517 true, however improbable they may be. (Id. at p. 280, citations omitted.)
REQUEST FOR JUDICIAL NOTICE
Defendants Request for Judicial Notice of its 11/11/24 Statement of Information filed with the California Secretary of State is GRANTED. (Tidrick v. FCA US LLC (2025) 112 Cal.App.5th 1147, 1156, fn. 3, citing Evid. Code § 452(c).) Judicial notice extends only to the contents of a document and not to the truth of the matters stated therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569.)
DISCUSSION
Defendant contends that the both causes of action alleged in the Complaint are subject to demurrer because (1) Plaintiff does not allege that the lease of the Subject Vehicle took place in California; and (2) the Complaint fails to allege that it has no more than five vehicles registered in California; and (3) Defendant is a distributor, not a manufacturer or retail seller.
Standing is a threshold element required to state a cause of action, and as such, lack of standing is appropriately raised by demurrer. (Robinson v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 481.) For the Song-Beverly Act to apply, the subject vehicle must have been bought or leased in California. (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 493.) In addition, a limited liability company has standing to sue under the Song Beverly Act only if it does not have more than five motor vehicles registered in California. (Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 308; Law Firm King Aminpour v. Rolls-Royce Motor Cars, NA, LLC (S.D. Cal. 2019) 401 F.Supp.3d 1060, 1064-1065.)
The Complaint fails to allege that Plaintiff leased the Subject Vehicle in California. The Complaint further fails to allege that Plaintiff does not have more than five motor vehicles registered in California. Generally, statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Although Plaintiff contends that Defendant improperly seeks additional facts to find evidence to support Plaintiffs claims, facts relating to whether the Subject Vehicle was leased in California and how many motor vehicles it has registered in the state are required to establish Plaintiffs standing to bring its claims under the Song-Beverly Act.
Defendant further contends that subject to its judicially noticeable Statement of Information filed with the California Secretary of State, it is a distributor, not a manufacturer or retail seller. However, the Complaint alleges that Defendant was/is engaged in the manufacture, sale, distribution, and/or importing of BMW motor vehicles and related equipment. (Compl. ¶ 1.) It is improper to rely on judicially noticeable documents to prove disputed facts. (Barri v. Workers Comp Appeals Bd. (2018) 28 Cal.App.5th 428, 437.) Questions of fact cannot be decided on
SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA
26CV164479: CRUSH SALON LLC vs BMW OF NORTH AMERICA, LLC 05/28/2026 Hearing on Demurrer DEFENDANT BMW OF NORTH AMERICA, LLCS NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIC ACHATZ; filed by BMW of North America, LLC (Defendant) CRS# 788724535943 in Department 517 demurrer. (Bath v. State of California (2024) 105 Cal.App.5th 1184, 1201.) As such, whether Plaintiff can allege claims against Defendant because Defendant is a distributor is not suitable for resolution on demurrer.
Based upon the foregoing, the demurrer to the Complaint for failure to allege facts sufficient to constitute a cause of action is SUSTAINED.
Leave to Amend
For an original complaint, even if a plaintiff does not request leave to amend, a trial courts denial of leave to amend is an abuse of discretion unless the complaint, on its face, shows that it is incapable of amendment. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.) Thus, even though Plaintiff has not stated what facts can be added to address the defects identified in the demurrer, Plaintiffs request for leave to amend is GRANTED.
CONCLUSION
Defendants demurrer is SUSTAINED WITH LEAVE TO AMEND. If Plaintiff can do so in good faith, it may amend its pleading to allege facts sufficient to state a cause of action as discussed herein. Plaintiffs amended pleading shall be filed and served by June 8, 2026. (C.R.C. rule 3.1320(g).)
Plaintiff may not include in the amended complaint any causes of action that are not asserted in the Complaint without leave of court. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) Plaintiff is further advised that, in the event it fails to timely file an amended pleading, the complaint is subject to dismissal pursuant to C.C.P. § 581(f)(2) and Rules of Court, rule 3.1320(h).
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 p.m. (but by Noon if possible) at least one (1) court day before the scheduled hearing, and briefly identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal 2. Case Search 3. Enter the Case Number and select "Search" 4. Select the Case Name
SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA
26CV164479: CRUSH SALON LLC vs BMW OF NORTH AMERICA, LLC 05/28/2026 Hearing on Demurrer DEFENDANT BMW OF NORTH AMERICA, LLCS NOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIC ACHATZ; filed by BMW of North America, LLC (Defendant) CRS# 788724535943 in Department 517 5. Select the Tentative Rulings Tab 6. Select "Click to Contest this Ruling" 7. Enter your Name and Reason for Contesting 8. Select "Proceed"
BY EMAIL Send an email to the DEPARTMENT CLERK and all the other parties no later than 4pm (but by Noon if possible) at least one (1) court day before the scheduled hearing.
BOTH ECOURT AND EMAIL notices are required.
ZOOM LOG-IN INFORMATION FOR DEPARTMENT 517 IS BELOW.
Join ZoomGov Meeting https://www.zoomgov.com/j/16181989812
Meeting ID: 161 8198 9812 One tap mobile +16692545252,,16181989812# US (San Jose) 16692161590,,16181989812# US +(San Jose)
Dial by your location +1 669 254 5252 US (San Jose) +1 669 216 1590 US (San Jose) +1 551 285 1373 US +1 646 828 7666 US (New York) 833 568 8864 US Toll-free Meeting ID: 161 8198 9812 Find your local number: https://www.zoomgov.com/u/ad6x1ZH23d
Join by SIP 16181989812@sip.zoomgov.com
Join by H.323 161.199.138.10 (US West) 161.199.136.10 (US East) Meeting ID: 161 8198 9812