Estate of Raul Braganza Rivero, et al. v. BMW of North America d/b/a BMW Motorrad, et al.

Case No.: 21CV381377 Defendant Bayerische Motoren Werke AG (“BMW AG”) demurs to the Complaint filed by the Estate of Raul Braganza Rivero, Carla Gardner, Angelica Rivero, and Raphael Rivero (collectively, the “Rivero Plaintiffs”) because the Complaint, and each cause of action alleged therein, is time barred as to any allegations against BMW AG. Notice of Demurrer (the “Demurrer”) at 1:27-2:2 (filed: April 6, 2026).

The Demurrer came on for hearing on June 3, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

I. Factual Allegations

On February 23, 2019, Raul Braganza Rivero (Decedent) purchased a new 2019 BMW R1250GSW, vehicle identification number WB10J53OXKZF77624 (the “SUBJECT MOTORCYCLE”), from a dealer located at 1990 W. San Carlos St., San Jose, CA 95128. (Complaint ¶ 9)

A month later, while driving the Motorcycle, the front wheel suddenly failed causing Mr. Rivero’s crash. Mr. Rivero was rushed to a nearby hospital but was pronounced dead on arrival. (Complaint ¶¶ 11, 12)

BMW brand motorcycles, including the Subject Motorcycle, have had a known problem with insufficient spoke tension that has caused other catastrophic wheel failure crashes. (Complaint ¶¶ 13, 14) BMW issued an international service campaign regarding the spoke detachment problem but did not issue a recall before Decedent’s crash. Nor did BMW warn Decedent of the potential wheel failure. (Complaint ¶ 15)

Plaintiffs filed the Complaint in this action on March 26, 2021, alleging causes of action for (1) negligence, (2) products liability – failure to warn, (3) products liability – design defect, (4) products liability - manufacturing defect, (5) products liability – breach of warranty, and (6) wrongful death.

II. Legal Standard

“The party against whom complaint or cross-complaint has been filed may object,

by demurrer or answer as provided in [Code of Civil Procedure] section 430.30, to the pleading on any one or more of the following grounds: . . . (e) The pleading does not state sufficient facts to constitute cause of action, (f) The pleading is uncertain.” (C.C.P. § 430.10(e) & (f).)

A demurrer may be used by “[t]he party against whom complaint has been filed” to object to the legal sufficiency of the pleading as whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (C.C.P. §§ 430.10 & 430.50(a).)

“A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 213-214.) In ruling on demurrers, courts may consider matters subject to judicial notice. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App. 4th 743, 751.) Evidentiary facts found in exhibits attached to the Complaint can be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)

Under California law, even if a demurrer is sustained, leave to amend the Complaint is routinely granted. “Liberality in permitting amendment is the rule, if fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1227.) “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (McDonald v. Sup. Ct. (Flintkote Co.) (1986) 180 Cal. App. 3d 297, 303-304.)

III. Judicial Notice

BMW AG requests judicial notice of the following:

• Copy of the Complaint filed on March 26, 2021. For the reason explained below, this Request is Granted in Part.

• Copy of the amendment to the Complaint for fictitious name filed on April 9, 2025. For the reason explained below, this Request is Granted in Part.

• Copy of proof of service of summons and Complaint on BMW AG. For the reason explained below, this Request is Granted in Part.

• Code of Federal Regulations, Title 49, Subtitle B, Chapter V, Part567, Section 567.4: Requirements for manufacturers of motor vehicles. For the reason explained below, this Request is Denied.

• NHTSA Vehicle Identification Number Decoder, VIN WB10J530XKZF77624, https://vpic.nhtsa.dot.gov/decoder/VinDecoder?VIN=WB10J530XKZF77624& ModelYear= (last visited May 26, 2026). For the reason explained below, this

Request is Denied.

Under Evidence Code § 452, the existence of court records relevant to the arguments raised in the pending motion is subject to judicial notice. However, the Court cannot take judicial notice of the truth of factual and hearsay statements contained in these documents. So for the documents listed above where the Court Grants the Request in Part, the Court takes judicial notice of the existence of these documents but not of the truth of fact and hearsay statements in these documents.

The Court Denies judicial notice of the documents from NHTSA Vehicle Identification Number Decoder and Code of Federal Regulations listed above because the Court rules that these documents are not relevant to this pending Demurrer.

IV. Analysis of the Demurrer

BMW AG argues that Plaintiff’s claims against it are time barred because:

(1) BMW AG was added to the Complaint on April 9, 2025, well past the two-year statutory limitation for an action for injury or death, which lapsed on March 26, 2021;

(2) Plaintiffs failed to identify and serve BMW AG within three years from the commencement of the action in violation of Code. Civ. Proc. § 583.210;

(3) Plaintiffs have failed to bring their claims against BMW AG to trial within five years from the commencement of the action in violation of Code. Civ. Proc. § 583.310.

The Court will now address and resolve those arguments in turn.

A. Plaintiff’s claims are not barred by the two-year statute of limitation. The crux of BMW AG’s argument is that Plaintiffs feigned ignorance of its identity, its role in manufacturing the Motorcycle, and the facts giving rise to a claim against it so that they can wrongly substitute BMW AG for a fictitiously named defendant. BMW AG emphasizes that Plaintiffs were aware of its manufacturing role and identity as early as fifteen months prior to initiating this action when they gained possession of the Subject Motorcycle and had ample opportunity to inspect and see a certification label affixed to its suspension fork identifying BMW AG as the manufacturer.

This label was again noted on March 7, 2022, when the parties jointly inspected the Subject Motorcycle with their experts. (Motion pp. 9:21-10:20) BMW AG submits a photograph of this label as exhibit B attachment to the declaration of Jeffrey Stoltz.

BMW AG argues that aside from this affixed label, Plaintiffs could have performed a basic internet search for the manufacturer of the Motorcycle to learn from sources such as Wikipedia that BMW Motorrad is the motorcycle brand of the German automotive

manufacturer, BMW AG. (Motion 10:21-27) But Plaintiffs waited until April 9, 2025, to identify and add BMW AG to the action. BMW AG contends that this delay and feigned ignorance undermine Plaintiffs’ Doe amendment under Code. Civ. Proc. 474 and prohibit Plaintiffs from utilizing equitable estoppel and the relation back doctrine to circumvent the statutory deadline.

Code. Civ. Proc. §474, the fictitious name statute, addresses when a claimant may bring a Doe amendment. Section 474 states, in relevant part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . .” C.C.P. § 474. In other words, “[s]ection 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a ‘Doe’), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it.” (McClatchy v.

Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371.) “If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176; internal citation omitted)

Section 474 relation-back doctrine applies when plaintiff is actually ignorant of the defendant’s identity even if that ignorance is the result of the plaintiff’s negligence. (Woo, supra, 75 Cal.App.4th at p. 177) “Our Supreme Court blessed negligent ignorance in Irving v. Carpentier (1886) 70 Cal. 23, 26, 11 P. 391, and that remains the law today.” (Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 900.) “The rule makes sense. If a reasonable diligence standard governed section 474, plaintiffs would be incentivized to routinely name any and all persons who might conceivably have some connection with the suit at the outset.” (Ibid.)

Ignorance of the facts giving rise to a cause of action is the alternate ignorance required by section 474 and the pivotal question is whether Plaintiffs knew facts not whether Plaintiffs knew/believe that they had a claim against the Defendant based on those facts. (See, General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 594.) “[T]he plaintiff does not relinquish her rights under section 474 simply because she has a suspicion of wrongdoing arising from one or more facts she does know.” (Id. at p. 595.) “[S]ection 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.” (Id. at p. 596.) “[A]n amended pleading, however, will not relate back unless the original complaint set forth or attempted to set forth some cause of action against fictitiously named defendants.” (Winding Creek v.

McGlashan (1996) 44 Cal.App.4th 933, 941.) “It is not enough, of course, simply to name “Doe” defendants. Rather, the complaint must allege that they were responsible in some way for the acts complained of.” (Ibid. internal citation omitted)

Here, the Complaint sufficiently alleges fictitiously named defendants to be substituted upon discovery of their identities. Plaintiffs naming ten Doe Defendants in

their Complaint, allege they were ignorant of the true names of these defendants. These fictitiously named defendants were responsible in some manner in causing and/or contributing to the harms Plaintiffs and the Decedent suffered from (Complaint ¶ 8) Plaintiffs further assert their first, second, fifth, and sixth causes of action against these ten Doe defendants by naming them under each applicable claim. As such, these allegations at the pleading stage do satisfy the initial requirement of section 474.

The next step is determining Plaintiffs’ actual ignorance. Contrary to BMW AG’s arguments, its identified facts, i.e. the certification label affixed to the Motorcycle and the Wikipedia article, do not conclusively establish Plaintiffs were not genuinely ignorant of BMW AG’s identity at the time they filed their initial Complaint. As noted above, Plaintiffs had no duty to search for facts to resolve section 474 issues when they filed their Complaint. Furthermore, simply having access to the Motorcycle and/or to Wikipedia articles does not mean Plaintiffs saw and read the certification label or the article.

More importantly, even if evidence exists that Plaintiffs inspected the Subject Motorcycle, saw the affixed label to the suspension fork, and read the Wikipedia article well prior to filing their Complaint, it would be improper for the Court to consider such extrinsic evidence at the pleading stage because a demurrer challenges only defects on the face of the pleadings or matters judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Accordingly, Defendant’s Demurrer on this ground is OVERRULED.

B. Plaintiff’s claims are not barred by the three-year statute of limitation.

BMW AG next argues that even if the Doe amendment relates back to the original filing date of the Complaint, the claims against it remain time-barred because Plaintiffs failed to identify and serve BMW AG within three years of the commencement of the action in violation of Code. Civ. Proc. § 583.210.

Code. Civ. Proc. § 583.210(a) states, “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” “[A]n action is commenced at the time the complaint is filed.” (Code Civ. Proc. § 583.210(a).) The specific purpose behind § 583.210 is to assure that defendants receive prompt notice of the action. (Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229, 1232, internal citation omitted) In computing the three years for service of a summons and Complaint, Code.

Civ. Proc. § 583.240(d) excludes any time in which the prosecution of the action was stayed or delayed because service was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. “Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for purposes of this subdivision.” (Code. Civ. Proc. § 583.240(d).)

The requirement that a plaintiff serve the Summons and Complaint within three years and the relation-back doctrine applicable to fictitiously named defendants are independent concepts. Therefore, even where the filing of an Amended Complaint on a

Doe defendant relates back to the filing of an original Complaint, the plaintiff must nonetheless identify and serve a Doe defendant with a summons and Complaint within three years of the commencement of the action.(Higgins v. Superior Court (App. 4 Dist. 2017) 15 Cal.App.5th 973, 982.)

Therefore, Plaintiffs were required to identify and serve BMW AG no later than March 26, 2024. BMW AG can utilize a demurrer where the dates in the Complaint or judicially noticeable documents demonstrate the cause of action is barred by the applicable statute of limitation. (See, Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.)

But on the face of the Complaint there are no factual allegations establishing the date BMW AG was served with the Summons and Complaint. Nor can the Court judicially notice the factual and hearsay statements in a proof of service regarding the date service was effectuated upon BMW AG. In resolving a Demurrer, a Court “cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115.) The truth of a document's contents will not be considered unless it is a judgment, statement of decision, or order. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.)

Accordingly, BMW AG’s Demurrer on this ground is OVERRULED.

C. Plaintiff’s claims are not barred by the five-year statute of limitation.

BMW AG next argues that even if the Doe amendment relates back to the original filing date of the Complaint, the claims against it remain time-barred because Plaintiffs failed to bring this action to trial in violation of Code. Civ. Proc. § 583.310.

Code Civ. Proc., § 583.360(a), provides that “an action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this action.” The timeframe is provided by Code Civ. Proc., § 583.310, which states an action must be brought to trial within five years after it commences against the defendant. An action is commenced by filing a Complaint with the court (Code Civ. Proc., §411.10.)

In computing the time within which an action must be brought to trial under this article, there shall be excluded the time during which any of the following conditions existed: (a) [t]he jurisdiction of the court to try the action was suspended; (b) [p]rosecution or trial of the action was stayed or enjoined; (c) [b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile. (Code Civ. Proc., § 583.340.)

Here, five years have passed since Plaintiffs commenced their action on March 26, 2021. But Plaintiffs contend that BMW AG is estopped from asserting the statutory limitation because throughout the litigation and within its recent motion to quash service of summons, BMW NA intentionally obscured and mislead Plaintiffs to believe BMW AG was a division of BMW NA and not a separate legal entity. Yet in its Demurrer, BMW AG argues that Plaintiffs had a separate opportunity to bring BMW AG into the action when

they participated in joint inspection of the Motorcycle. (Opposition 9:14-10:6, 12:5-13:14) Equitable estoppel comes into play only after the limitations period has run and addresses the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his/her conduct has induced another into forbearing suit within the applicable limitations period.

So equitable estoppel is wholly independent of the limitations period itself and takes its life from the equitable principle that no man may profit from his own wrongdoing in a court of justice. (See, Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 383) Here, Plaintiffs do not contend BMW AG engaged in or assisted in any misleading acts to obscure its identity and/or role in manufacturing the Subject Motorcycle, for which they should be estopped from asserting the statutory limitation as a defense. Plaintiffs are improperly invoking the equitable estoppel doctrine against BMW AG for the alleged wrongdoings and misleading acts of BMW NA.

But whether BMW AG and/or BMW NA intentionally mislead Plaintiffs and obscured the identity of BMW AG and its role in manufacturing the Motorcycle to the point that bringing the action to trial was impracticable require factual findings that cannot be made let alone resolved at the pleading stage in a Demurrer.

Accordingly, BMW AG’s Demurrer on this ground is OVERRULED.

V. Conclusion & Order

BMW AG’s Demurrer to the Complaint is OVERRULED in all respects.

SO ORDERED.

Date: June 3, 2026 Hon. Vincent I. Parrett Superior Court of the State of California, County of Santa Clara

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