Manuel Rocha v. BMW of North America, LLC, et al.

II. DISCUSSION

A. The First, Second, and Third Causes of Action Sufficiently State Facts to Constitute Violations of the Act

Defendants contend that the first, second, and third causes of action of Plaintiff’s complaint fail because (1) the complaint does not allege that the vehicle was purchased in California and (2) the Subject Vehicle is “used” and does not meet the requirements articulated in Rodriguez v. FCA US LLC (2024) 17 Cal.5th 189 (Rodriguez).

Addressing Defendants’ first ground for relief and drawing all reasonable inferences in favor of Plaintiff, the Court infers that the Subject Vehicle was purchased in California. (Cmp., ¶¶ 2, 3, 4, 5.) The motion on that ground is overruled.

Defendants contend that the Act applies only to new vehicles, and not, used or certified pre-owned (CPO) vehicles. (Civ. Code §§ 1793.2, subd. (d)(2); 1793.22, subd. (e)(2).) 1 Defendants explain that Rodriguez stands for the proposition “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] at 191 (emphasis added).)” (Mot., p. 12, ll. 19-23.)

Defendants argue that the complaint does not allege facts showing that the CPO warranty is the equivalent of a new car warranty. Instead, the complaint only alleges that the CPO warranty provides extended coverage for one year, which is not the same as a manufacturer’s new car warranty. Defendants argue that because the CPO warranty was not a new car warranty issued at the time of sale, the causes of action fail under Rodriguez.

Plaintiff contends that Defendants’ mischaracterization of the CPO warranty as a “deferred extension” is inconsistent with the Act and Rodriguez. Plaintiff argues that Rodriguez “confirmed that ‘section 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]’ (Rodriguez supra, at 202.)” (See Opp., p. 5, ll. 16-18.) Plaintiff additionally argues that “[g]iven this CPO warranty was a manufacturer-backed and issued contemporaneously with the retail sale, it constitutes a “newly issued” express warranty that brings the transaction squarely within the protections Rodriguez preserved.

Furthermore, as the Supreme Court reaffirmed in Rodriguez by citing Kiluk v. Mercedez-Benz USA, LLC, 2 a distributor’s issuance of a CPO warranty on a used vehicle triggers express and implied warranty liability under Section 1795.5.” (Opp., p. 6, ll. 5-9.)

The complaint alleges, that “[pursuant to Section 1792.22, subdivision (e)(2), of the California Civil Code, the Subject Vehicle was a certified pre-owned (‘CPO’) purchased as a CPO vehicle with an accompanying BMW OF NORTH AMERICA, LLC’s new and full CPO warranty, and therefore constitutes a ‘new motor vehicle’ under the Act.” (Cmp., ¶ 9, [emphasis added].) Defendants contend that “Plaintiff’s effort to characterize a limited CPO extension as the equivalent of a newly issued ‘new car warranty’ finds no support in Rodriguez or the statutory text.” (Reply, p. 2, ll. 13-15.)

However, when considering a motion for a judgment on the pleadings, the Court must accept all well-pleaded material facts as true. Consequently, Defendants’ arguments disputing that the Subject Vehicle was sold with a new car warranty, are improperly raised in this motion. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2025) ¶ 7:323 [the proper vehicle to controvert a material fact in the pleading is a motion for summary judgment and not a judgment on the pleadings].)

Therefore, the motion is denied on this ground. 1 Unless otherwise stated, further references will be to the Civil Code. 2 (Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334.)

B. First Cause of Action for Breach of Express Warranty

Defendants contend that the first cause of action fails because under Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 (Silvio), a single repair attempt is insufficient to support a Song-Beverly claim, as the law requires multiple opportunities to repair the defect. Defendants argue that the first cause of action fails because Silvio provides that “at least two repair attempts” are needed to satisfy the “reasonable number of repair attempts” element. (Civ. Code § 1793.2.) Defendants explain that while there were three repair visits in this case, each defect occurred only once.

The Court is not persuaded by Defendants’ arguments. Silvio does not stand for the proposition that a plaintiff must present their vehicle for a specific defect more than once because the court of appeal did not consider whether multiple repair attempts for each defect were required. Moreover, as noted in Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 802, which issued after Silvio, “the critical question of whether a reasonable number of attempts were provided thereby allowing the consumer to forego further repair attempts and pursue a ‘replace-or-repurchase’ remedy, depends on the facts and circumstances of each case.”

Thus, the motion on this ground is denied.

C. The Second Cause of Action for Breach of Implied Warranty

Defendants contend that the breach of implied warranty claim under Civil Code section 1791.1 fails because BMW NA is a distributor and not a manufacturer. Defendants request that the Court take judicial notice of BMW NA’s Statement of Information filed with the California Secretary of State reflecting that BMW NA is an “importer/wholesaler of motor vehicles.” (McGregor Dec., ¶ 4, Ex. 1.) Plaintiff contends that BMW NA is a manufacturer. (Opp., p. 10, ll. 13-18.)

It is proper to consider relevant judicially noticeable facts on a motion for judgment on the pleadings. However, while the court may be able to take judicial notice of the existence and legal effect of documents, “[j]udicial notice of the existence of an official document under [Evidence Code section 452, subdivision (c)] does not establish the truth of all recitals therein...” (1 Witkin, Cal. Evid. (6th ed. 2025) Jud. Notice, § 31.) Accordingly, though the Court takes judicial notice of the Statement of Information, judicial notice of the filing of this document does not extend to the truth of its contents. (Joslin v. H.A.S. Insurance Brokerage (1986) 184 Cal.App.3d 369, 374.)

The motion is denied on this ground.

D. The Third Cause of Action for Violation of Civil Code Section 1793.2

Defendants contend that the third cause of action under Civil Code section 1793.2, subdivision (b) fails because the complaint does not allege that any repair took longer than thirty days. In support, Defendants rely on federal authorities but cite no binding California authority compelling dismissal at the pleading stage. The Court is not persuaded that Plaintiff is required to plead the exact number of days the Subject Vehicle spent in repair. Whether any repair period exceeded thirty days is a factual matter that may be addressed through discovery or a motion for summary

judgment, if appropriate. Accordingly, Defendants’ argument does not support judgment on the pleadings.

E. The Fourth Cause of Action for Negligent Repair

Defendants contend that Plaintiff’s negligent repair cause of action is barred by the economic loss rule, as the crux of Plaintiff’s claim is that BMW SLO failed to repair Plaintiff’s vehicle to conform to the warranty, and there is no duty independent of the contract alleged.

According to the allegations in the complaint, BMW SLO owed Plaintiff no other duty than that imposed by BMW NA’s warranty, i.e., a breach of contractual obligations. Plaintiff argues that “[a] negligent repair claim may proceed where the plaintiff alleges that the repair facility’s negligent conduct caused additional damage to the vehicle, exacerbated existing defects, diminished vehicle value, or deprived Plaintiff of the use and benefit of the vehicle.” (Opp., p. 14, ll. 17-19.) However, Plaintiff has not alleged that in attempting to repair the vehicle, BMW SLO caused additional damage to the Subject Vehicle, but only that the attempt was not successful. (Cmp., ¶ 66.) Therefore, the economic loss rule applies.

Plaintiff’s reliance on North American Chemical Company v. Superior Court (1997) 59 Cal.App.4th 764, 777-81 (North American Chemical) to show that the economic loss doctrine does not apply to cases for negligent performance of services is unavailing. In North American Chemical, defendant packed and shipped chemicals on behalf of the plaintiff. (Id., at p. 770.) The chemicals became contaminated while in defendant’s possession. (Id., at p. 770.) The end customer then demanded payment from plaintiff. (Id., at p. 771.)

The plaintiff ultimately settled with the customer and in turn sued the defendant for breach of contract and negligence. (Id., at p. 770-771.) The court of appeal concluded that the defendant had a duty of reasonable care in performing on a contract, which authorized a tort claim for negligent performance of a contract. (Id., at p. 773-788.) The Court finds North American Chemical distinguishable and inapplicable to the facts of this case.

Thus, Defendants’ motion is granted as to the fourth cause of action with leave to amend.

ORDER

The motion for judgment on the pleadings to the first, second, and third causes of action is denied. The motion is granted to the fourth cause of action with leave to amend.

Plaintiff may file an amended complaint within twenty (20) days from service of the notice of ruling, as to the fourth cause of action. Defendants are to serve the notice of ruling. (Code Civ. Proc., § 1019.5.)

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