1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOANNE SABA, et al., Case No. 23-cv-05133-JST
8 Plaintiffs, ORDER ON RENEWED MOTION FOR 9 v. JUDGMENT AS A MATTER OF LAW AND MOTION FOR A NEW TRIAL 10 BMW OF NORTH AMERICA LLC, Re: ECF No. 98 Defendant. 11
12 13 Now before the Court is Defendant BMW of North America LLC’s (“BMW NA”) 14 renewed motion for judgment as a matter of law or, in the alternative, motion for new trial. ECF 15 No. 98. The Court will deny the motion. 16 I. BACKGROUND 17 This case concerns Plaintiffs’ purchase of an allegedly defective used car. Plaintiff Joanne 18 Saba purchased a certified pre-owned (“CPO”) 2020 BMW X7 (“the Vehicle”) from Peter Pan 19 BMW in San Mateo, California on July 28, 2022. ECF No. 102-7 at 2. While Peter Pan BMW 20 was the retailer, BMW NA was the distributor. 1 Included in the Vehicle’s purchase price was a 21 CPO warranty with an expiration date of September 23, 2024. ECF No. 102-9 at 2; ECF No. 102- 22 7 at 2–3. BMW NA’s expert, Joe Grijalva, testified that CPO coverage is offered directly by 23 BMW NA. ECF No. 87 at 142. When Saba purchased the Vehicle, time remained on the new 24 vehicle warranty that was issued to the Vehicle’s first retail purchaser, which covered Saba until 25 the expiration of that warranty on September 23, 2023. Id.; ECF No. 102-8 at 3. 26 1 BMW NA is identified as a distributor in the parties’ joint pretrial statement. ECF No. 44 at 2. 27 A “distributor” is defined as “any individual, partnership, corporation, association, or other legal 1 After purchasing the Vehicle, Saba brought it back to the dealer for repairs on many 2 occasions. Six of these occasions, spanning from February 20, 2023 until February 12, 2024, 3 concerned a “major latent defect in the powertrain system” which caused the vehicle to jolt when 4 driven on hills or while shifting gears. ECF No. 102 at 9–10; ECF Nos. 102-12 (February 2023), 5 102-13 (March 2023), 102-14 (May 2023), 102-15 (June 2023), 102-16 (July 2023), 102-17 6 (February 2024) (repair order service invoices). Saba also presented the Vehicle to BMW for 7 repairs three additional times for unrelated issues before the CPO warranty expired. ECF No. 102 8 at 10; ECF Nos. 102-18 (September 2023; Saba complained of ticking noise and difficulty starting 9 the car), 102-19 (May 2023; rattling noise in rear cargo area and sunroof shade unable to open), 10 102-20 (June 2024; rear seatbelt not retracting). 11 Plaintiffs filed this lawsuit under the Song-Beverly Act (“Song-Beverly” or “the Act”) on 12 October 6, 2023, alleging breach of express warranty, breach of implied warranty, and failure to 13 conform the vehicle to warranty condition within 30 days as required by Section 1793.2(b) of the 14 Act. ECF No. 1. BMW NA answered the complaint on October 27, 2023. ECF No. 12. After 15 discovery concluded, the parties filed a joint pretrial statement on April 25, 2025 indicating that no 16 legal issues were disputed. ECF No. 44 at 14. They also submitted joint jury instructions which 17 referred to a “new motor vehicle” but did not require Plaintiffs to prove that the vehicle was new 18 as an element of their claims. ECF No. 41 at 31, 35, 39. Notably, the jury instructions applied the 19 statute’s provisions governing the duration of implied warranties for new vehicles, not the shorter 20 duration for used vehicles specified in Section 1795.5. Id. at 36; compare Cal. Civ. Code 21 § 1791.1(c) with Cal. Civ. Code § 1795.5(c). 22 On May 30, 2025—one court day before jury selection was scheduled to begin—Plaintiffs’ 23 counsel notified the Court that BMW NA’s counsel had indicated the day prior that he intended to 24 call a technician from the dealership as a witness. ECF No. 101 at 7. Plaintiffs requested that the 25 Court exclude the witness as not timely disclosed. ECF No. 97 at 11–12. The witness, named 26 Jared Taylor, had previously been identified on Plaintiffs’ pretrial witness list only as “Technician 27 82” and not by name. ECF No. 101 at 10. Technician 82 was not listed on BMW NA’s pretrial 1 Rule 26 of the Federal Rules of Civil Procedure, ECF No. 101 at 13. After hearing, the Court 2 granted the request to exclude and barred BMW NA from calling Taylor at trial. ECF No. 101 at 3 13–15. 4 BMW NA did not raise the legal arguments made in the instant motion in its answer to the 5 complaint, 2 in its case management statement, via a motion to dismiss or a motion for summary 6 judgment, in its motions in limine, in its proposed jury instructions or proposed special verdict 7 form, or at the pretrial conference. ECF Nos. 12, 19, 36, 37, 41, 43, 44, 55. On the third day of 8 trial, however, BMW NA filed three motions for judgment as a matter of law—one for each cause 9 of action. ECF Nos. 74–76. The next day, the parties gave closing arguments and the jury 10 returned a verdict in Plaintiffs’ favor on both the express and implied warranty claims. ECF No. 11 80. After the jury returned its verdict, BMW NA retracted its motions for judgment as a matter of 12 law and filed the instant renewed motion for judgment as a matter of law, or in the 13 alternative,motion for a new trial. ECF Nos. 83, 98. 14 II. LEGAL STANDARD 15 Rule 50 of the Federal Rules of Civil Procedure authorizes the Court to grant judgment as 16 a matter of law against a party if a reasonable jury would not have a legally sufficient evidentiary 17 basis to find for that party. Under Rule 50(a), a party may move for judgment on the pleadings 18 before the case is submitted to the jury. Fed. R. Civ. P. 50(a). If the Court does not grant a 19 motion for judgment as a matter of law under Rule 50(a), then the movant may file a renewed 20 motion for judgment as a matter of law after the jury verdict but within 28 days of the entry of 21 judgment. Fed. R. Civ. P. 50(b). When filing a renewed motion for judgment as a matter of law 22 under Rule 50(b), the movant “may include an alternative or joint request for a new trial under 23 Rule 59.” Id. 24 In ruling on the renewed motion, the Court may: (1) allow judgment on the verdict; (2) 25 2 BMW NA’s primary argument is that the Vehicle is not “new” within the meaning of the Act. 26 One of twenty-three affirmative defenses listed in BMW NA’s answer to the complaint, labeled “business use,” alleges that “Plaintiffs’ claims fail because the VEHICLE is not a ‘new motor 27 vehicle’ as set forth in California Civil Code section 1793.22, subdivision (e).” ECF No. 12 at 9. 1 order a new trial; or (3) direct entry of judgment as a matter of law. Id. To determine whether a 2 directed entry of judgment or a new trial is appropriate, “[t]he appropriate test is whether ‘the 3 evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s 4 verdict.’” Martinez v. Costco Wholesale Corp., No. 19-CV-1195-WVG, 2023 WL 1931836, at *8 5 (S.D. Cal. Feb. 10, 2023), appeal dismissed, No. 23-55245, 2023 WL 4043951 (9th Cir. Apr. 4, 6 2023) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 917 (9th Cir. 2003)). 7 A Court may grant a new trial under Rule 59 “for any reason for which a new trial has 8 heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). Those 9 reasons include (1) a verdict that is contrary to the clear weight of the evidence, (2) a verdict that 10 is based on false or perjured evidence, or (3) to prevent a miscarriage of justice. Molski v. M.J. 11 Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). “Erroneous evidentiary rulings and errors in jury 12 instructions are also grounds for a new trial.” Muhammad v. Conner, No. 10-CV-1449 YGR, 13 2012 WL 2428937, at *2 (N.D. Cal. June 26, 2012) (citation modified). 14 For the reasons explained below, the Court finds that the conditions for a directed entry of 15 judgment or a new trial have not been met. 16 III. DISCUSSION 17 A. “New Motor Vehicle” 18 BMW NA first argues, for the first time in its motion for judgment as a matter of law, that 19 the Court should set aside the jury’s verdict because “the Song-Beverly Act’s express warranty 20 provisions apply only to “new motor vehicles” and “it is undisputed that Plaintiffs purchased the 21 Vehicle used with over 37,000 miles on the odometer and merely a balance of the original 22 manufacturer’s warranty.” ECF No. 98 at 10. While BMW NA is correct that the Vehicle is not a 23 “new motor vehicle” within the meaning of the Act, Section 1795.5 of the Act applies its 24 provisions to used motor vehicles. And although Section 1795.5 provides for some differences in 25 the scope of protection for used vehicles, none of those differences is relevant here. BMW NA’s 26 new legal theory concerning the used nature of the vehicle therefore does not support entry of 27 judgment as a matter of law or a new trial. 1 1. Statutory Definition 2 “The Song-Beverly Act is a remedial statute designed to protect consumers who have 3 purchased products covered by an express warranty.” Robertson v. Fleetwood Travel Trailers of 4 Cal., Inc., 144 Cal. App. 4th 785, 798 (2006). The Act generally covers “consumer goods,” which 5 are defined as “new” products or parts thereof. Cal. Civ. Code § 1791(a). Under the Act, “if the 6 manufacturer or its representative in this state does not service or repair the goods to conform to 7 the applicable express warranties after a reasonable number of attempts, the manufacturer shall 8 either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by 9 the buyer.” Cal. Civ. Code § 1793.2(d)(1). 10 The Act often deals with vehicles separately, although its vehicular provisions are 11 analogous to its general provisions for consumer goods. Just as a “consumer good” is defined as 12 “new,” the Act’s vehicular provisions apply to “new motor vehicles,” which are defined by 13 Section 1793.22(e)(2). Plaintiffs brought their claim for breach of an express warranty under 14 Section 1793(d)(2), which provides that “[i]f the manufacturer or its representative in this state is 15 unable to service or repair a new motor vehicle, as that term is defined in [Section 1793.22(e)(2)], 16 to conform to the applicable express warranties after a reasonable number of attempts, the 17 manufacturer shall either promptly” replace the vehicle or make restitution, and the buyer is free to 18 elect either remedy. 19 In Rodriguez v. FCA US LLC, the California Supreme Court settled a divide among 20 California courts on the meaning of a “new motor vehicle.” 17 Cal. 5th 189, 204–05 (2024). The 21 Act’s definition of “new motor vehicle” includes “a dealer-owned vehicle and a ‘demonstrator’ or 22 other motor vehicle sold with a manufacturer’s new car warranty.” Cal. Civ. Code 23 § 1793.22(e)(2). Some California courts had interpreted “other motor vehicle sold with a 24 manufacturer’s new car warranty” to include used cars that had been sold with a balance of the 25 original manufacturer’s warranty remaining, as Saba’s car was sold to her. See Jensen v. BMW of 26 North America, 35 Cal. App. 4th 112, 123 (1995). The California Supreme Court rejected that 27 interpretation in Rodriguez, holding that “a motor vehicle purchased with an unexpired 1 new car warranty’ under [Section 1793.22(e)(2)’s] definition of ‘new motor vehicle’ unless the 2 new car warranty was issued with the sale.” Id. at 196. 3 In reaching this conclusion, the Court interpreted “other motor vehicle sold with a 4 manufacturer’s new car warranty” by comparison to the two other classes of used cars covered by 5 the Act—“dealer-owned vehicle[s]” and “demonstrator[s].” Id. at 198. The Court noted that 6 manufacturers and their dealer-representatives uniquely treat these classes of vehicles as new by 7 selling them with “the same type of manufacturer’s warranty that accompany[ies] new cars.” Id. 8 The “key point,” the Court held, is that “[i]n every case, the first customer to purchase or lease a 9 demonstrator or dealer-owned vehicle receives a new warranty arising in that transaction, directly 10 from the manufacturer.” Id. at 198–99 (emphasis in original). “In other words, a warranty in this 11 context is a guarantee made by the manufacturer to a retail buyer” and “the sale to a retail buyer is 12 what gives rise to a new car warranty.” Id. at 199. 13 The Court also noted that in amending the Act over the years, the legislature has 14 maintained a careful distinction between used and new products, suggesting that “the phrase ‘other 15 motor vehicle sold with a manufacturer’s new car warranty’ was not intended to cover any used 16 car with an unexpired new car warranty.” Id. at 202. Rodriguez therefore held that a used car is a 17 “new motor vehicle” under very specific circumstances—where “the new car warranty was issued 18 with the sale.” Id. at 196. To be a “new motor vehicle,” a car must have been “sold to the first 19 retail buyer with a manufacturer’s new car warranty,” “whether the manufacturer reinstates the 20 original warranty period, extends the warranty’s mileage, or simply sells the vehicle with a 21 warranty arising in that first retail transaction.” Id. at 199. 22 Here, Saba purchased the vehicle at issue with over 37,000 miles on it and merely a 23 balance of the original manufacturer’s warranty remaining. ECF No. 102-7 at 2 (sale contract 24 noting that the car was used with 37,876 miles on the odometer); ECF No. 102-8 (BMW database 25 noting beginning and end dates of new vehicle warranty). And critically, Plaintiffs purchased a 26 car under a warranty which had already benefited an earlier retail purchaser. Cf. Rodriguez, 17 27 Cal. 5th at 198 (noting that they “key point” is that new motor vehicles “are not warranted prior to 1 sale”). The Vehicle was not a “new motor vehicle” under Song-Beverly when Saba purchased it.3 2 2. Section 1795.5 3 In its opposition to the motion, Plaintiffs do not contest BMW NA’s position that the 4 Vehicle is not a “new motor vehicle.” Instead, Plaintiffs argue that the vehicle was covered by a 5 section of the Act—Section 1795—that extends much of the Act’s protections to used consumer 6 goods. 7 Section 1795 provides that “[n]otwithstanding the provisions of subdivision (a) of Section 8 1791 defining consumer goods to mean ‘new’ goods, the obligation of a distributor or retail seller 9 of used consumer goods in a sale in which an express warranty is given shall be the same as that 10 imposed on manufacturers under this chapter” with several exceptions.4 Two of these exceptions, 11 discussed in relevant part below, involve the extent of the manufacturer’s liability and the duration 12 of any implied warranties. See Cal. Civ. Code § 1795.5(a),(c). 13 In its reply, BMW NA makes several arguments concerning Plaintiffs’ new Section 1795.5 14 theory. First, it argues that it is not subject to the provisions of Section 1795.5, relying on Kiluk v. 15 Mercedes-Benz USA, LLC, 43 Cal. App. 5th 334, 340 (2019). ECF No. 103 at 4–5. BMW NA 16 also argues that its liability should be limited to the period within which the CPO warranty was in 17 effect and that the CPO warranty did not take effect until after the original new vehicle warranty 18 expired. ECF No. 98 at 13–15; ECF No. 103 at 7–8. Next, BMW NA argues that the implied 19
20 3 BMW NA argues that, in light of Rodriguez, the Court erred by instructing the jury not to consider evidence that the Vehicle was used. ECF No. 98 at 8, 18–19. But since the used nature 21 of the Vehicle is undisputed, ECF No. 44 at 3–4 (joint pretrial statement acknowledging that the Vehicle was pre-owned), it was not an error to instruct the jury not to consider it in evaluating the 22 other fact issues presented to them. The Court’s error was in instructing the jury—as the parties requested—according to Plaintiffs’ original theory of the case, wherein the Vehicle was subject to 23 the general provisions of the Act (as opposed to the specific provisions for used goods in Section 1795.5). 24 4 Plaintiffs argue that the CPO warranty is in fact a warranty. ECF No. 102 at 24–25. This is obviously true under Gavaldon v. DaimlerChrysler Corp., which holds that contract provisions 25 making guarantees to preserve or maintain the performance of a consumer good, at no extra charge to the purchaser, describing themselves as a “warranty,” create an express warranty. 32 Cal. 4th 26 1246, 1255, 1258–59 (2004). The jury agreed. See ECF 102 at 24. The proposition that the CPO warranty is a warranty within the meaning of the Act is also not meaningfully disputed. See ECF 27 No. 44 at 4 (joint pretrial statement describing the existence of a written warranty as undisputed); 1 warranty provisions of the Act under Section 1792 do not apply to it because liability is extended 2 only to retail sellers and manufacturers, notwithstanding the provisions of Section 1795.5. ECF 3 No. 98 at 15–17. Finally, BMW NA points out that no theory based on Section 1795.5 was 4 pleaded in the complaint or presented to the jury. ECF No. 103 at 3–4. Resolving these issues, 5 the Court finds that Plaintiffs’ Section 1795.5 theory is correct and that BMW NA has not shown 6 that a directed judgment or a new trial is warranted. 7 a. Viability of the Express Warranty Claim Under Kiluk 8 In disputing whether their Plaintiffs’ claims fall within the scope of Section 1795.5, both 9 parties rely on the California Court of Appeal’s decision in Kiluk v. Mercedes-Benz USA, LLC, 43 10 Cal. App. 5th 334 (2019). Kiluk applied Section 1795.5 to used vehicles, so it is useful in 11 dispelling any doubt about whether its provisions concerning “used consumer goods” apply 12 specifically to used vehicles. Kiluk’s central holding, however, is not relevant because it involved 13 a manufacturer, while BMW NA is undisputedly a distributor. See supra note 1. 14 In Kiluk, as here, the plaintiff purchased a certified preowned vehicle with time remaining 15 on the original manufacturer’s new vehicle warranty. Id. at 337. With the sale of the vehicle, 16 Mercedes-Benz USA issued an additional certified preowned warranty that lasted one year from 17 the end of the new car warranty. Id. Perhaps anticipating the California Supreme Court’s decision 18 in Rodriguez, the Kiluk court avoided deciding whether the remaining time on the original new 19 vehicle warranty rendered the subject vehicle a “new motor vehicle” within the meaning of 20 Section 1793.22(e)(2). Id. at 339–40. Instead, the court held that Mercedes-Benz was liable to the 21 plaintiffs for breach of express warranty under Section 1795.5, which was not at issue in 22 Rodriguez. Indeed, Rodriguez confirmed Kiluk’s continued viability. Rodriguez, 17 Cal. App. 5th 23 at 202. 24 Kiluk’s central holding involved the fact that Mercedes-Benz USA was a manufacturer. 25 By its text, Section 1795.5 only extends liability concerning used goods to distributors and retail 26 sellers. Cal. Civ. Code § 1795.5 & (a). Commenting on this feature of the statute, the California 27 Court of Appeal noted in Kiluk that “[t]he Song-Beverly Act provides similar remedies in the 1 App. 5th at 339. In Kiluk, the court found that Section 1795.5 nonetheless applied to Mercedes- 2 Benz because Mercedes-Benz was so intimately involved in the sale process as to be in the 3 position of a retailer.5 Id. at 340. 4 BMW NA argues that Kiluk does not apply because it is a distributor, while Kiluk involved 5 the vehicle manufacturer. ECF No. 103 at 4–5. But BMW NA has it backwards. Section 1795.5 6 explicitly extends coverage of the Act to retailers and distributors of used vehicles. Cal. Civ. 7 Code § 1795.5 (providing that “the obligation of a distributor or retail seller of used consumer 8 goods in a sale in which an express warranty is given shall be the same as that imposed on 9 manufacturers” with certain exceptions (emphasis added)). Kiluk’s question about whether a 10 manufacturer acting as a retailer could be liable is irrelevant here, where BMW NA is admittedly a 11 distributor and covered by the plain text of Section 1795.5. See, e.g., ECF No. 44 at 2 (joint 12 pretrial statement referring to BMW NA as a distributor). 13 As “a distributor . . . of used consumer goods in a sale in which an express warranty is 14 given,” BMW NA is liable to Plaintiffs under Section 1795.5. Because Section 1795.5 provides 15 that the “obligation of a distributor or retail seller of used consumer goods in a sale in which an 16 express warranty is given shall be the same as that imposed on manufacturers under this chapter” 17 and a jury found that BMW NA, a distributor, breached those exact obligations, any error in 18 instructing the jury on code provisions relating to “new motor vehicles” was harmless and does 19 not justify a directed verdict or a new trial. 20 b. Scope of the Express Warranty Claim 21 In the alternative, BMW NA argues for judgment as a matter of law on the grounds that 22 most of the repair orders in the record should be excluded from consideration and that those 23 5 The Kiluk court held that Mercedes-Benz USA had put itself in the position of a retailer by 24 selling directly to the public. It “partnered with a dealership to sell used vehicles directly to the public by offering an express warranty as part of the sales package, which is a crucial incentive for 25 buyers.” Kiluk, 43 Cal. App. 5th at 340. In doing so, it “stepped into the role of a retailer and was subject to the obligations of a retailer under Section 1795.5.” Id. In this case, Plaintiffs argue that 26 BMW NA satisfies this test by “partner[ing] with its authorized dealerships to sell CPO warranted vehicles.” ECF No. 1202 at 22–23. While Plaintiffs’ evidence on this point is thin, see ECF No. 27 103 at 5 (BMW arguing the evidence was inadequate), that is irrelevant because BMW NA is a 1 remaining cannot support liability under Song-Beverly. ECF No. 98 at 13-14. It argues that only 2 the repair orders which took place during the CPO warranty period should count towards its 3 liability for breach of express warranty. Id. at 13. It then asserts that the CPO warranty only took 4 effect after the original new vehicle warranty lapsed in September of 2023. Id. at 13–14; ECF No. 5 103 at 7–8. Because the repair orders that took place after the new vehicle warranty lapsed but 6 before the CPO warranty lapsed did not involve multiple failed attempts to solve the issues 7 identified, BMW NA argues that they are insufficient to give rise to Song-Beverly liability. ECF 8 No. 98 at 14–15; ECF No. 103 at 8. 9 Assuming without deciding that BMW NA is correct that liability must stem from the CPO 10 warranty period,6 the Court finds that BMW NA has not justified judgment as a matter of law. 11 Rather, BMW NA has only shown that a legal theory it failed to raise until trial was nearly over 12 might have supported a defense verdict, but only if the jury resolved disputed evidence in its 13 favor. The Song-Beverly Act requires a plaintiff to plead and prove that “the manufacturer or its 14 representative in this state [did] not service or repair the goods to conform to the applicable 15 express warranties after a reasonable number of attempts.” Cal. Civil Code § 1793.2(d)(1). 16 Because “attempts” is plural, a single failed attempt cannot constitute a violation of the Act. Silvio 17 v. Ford Motor Co., 109 Cal. App. 4th 1205, 1207–08 (2003). Moreover, as BMW NA argues, 18 unrelated, single repairs cannot be aggregated to prove liability under the Song-Beverly Act. ECF 19 No. 98 at 15. Rather, “for Plaintiff to be entitled to relief for any particular problem with her 20 [BMW], she must show that she brought the car in to [BMW] for the repair of that particular 21 problem on more than one occasion.” Brownfield v. Jaguar Land Rover N. Am., LLC, 584 F. 22 App’x 874, 875 (9th Cir. 2014); see also Treuhaft v. Mercedes-Benz USA, LLC, Case No. 2:20-cv- 23 11155-SVW-GJS, 2021 WL 2864877, at *3 (C.D. Cal. July 6, 2021) (“To constitute a ‘reasonable 24 6 BMW NA argues that “[i]f Plaintiffs were able to stack the repair orders which took place during 25 the manufacturer’s new car warranty with the repair orders that took place during the CPO, the effect would be to resurrect the very claim that Rodriguez prohibits.” ECF No. 98 at 13. 26 Rodriguez prohibited suits against the manufacturers by secondhand purchasers, while Plaintiffs here seek to sue the distributor. Still, BMW NA may be correct. Song-Beverly’s protections are 27 premised on an express warranty arising from the sale of a product and the Act holds liable the 1 number of repair attempts,’ a plaintiff must present the vehicle to the manufacturer or seller more 2 than once, complaining of the same defect each time.” (citing Robertson, 144 Cal. App. 4th at 3 799). 4 Plaintiffs seem to argue that repeat visits satisfy Section 1793.2(b) even if those visits deal 5 with unrelated issues. ECF No. 102 at 26.7 Their position contradicts the authorities discussed 6 above and makes little sense: the statute requires that warrantors of consumer goods restore those 7 goods to warranty conditions, but a consumer facing multiple product issues that are each resolved 8 after a single visit has already been made whole. 9 During the alleged CPO period—September 23, 2023 until September 23, 2024—the 10 record documents three repair order visits. On February 12, 2024, Saba presented the Vehicle to 11 repair a twisted seatbelt and the jolting problem she had complained of in previous repair orders. 12 ECF No. 102-17 at 2. On May 13, 2024, Saba presented the Vehicle to repair rattling and the 13 sunroof shade’s failure to open. ECF No. 102-19 at 2. On June 10, 2024, Saba complained of a 14 different seatbelt’s failure to retract. ECF No. 102-20 at 2.8 Because the CPO warranty period 15 does not appear to contain repeat visits for the same issue, Plaintiffs may not have a claim based 16 on only those repair visits that occurred after September 23, 2023. 17 When the CPO warranty began, however, is a fact question that is not only subject to 18 reasonable dispute but in fact appears to favor Plaintiffs. BMW NA bases its position that the 19 CPO warranty did not begin until the original manufacturer’s warranty lapsed—which occurred on 20 September 23, 2023, see ECF No. 102-8 at 3—on the testimony of its corporate witness. ECF No. 21 98 at 13–14 (citing ECF No. 85 at 68). Plaintiffs counter that the CPO warranty was active 22 starting on the purchase date of July 28, 2022. ECF No. 102 at 8. They cite the “BMW Certified 23 7 Plaintiffs argue that BMW NA’s position that standalone repair appointments cannot engender a 24 Section 1793.2(d) claim was already rejected by the Court in its ruling on Motion in Limine No. 1. ECF No. 102 at 26-27. This misrepresents the Court’s order on that motion, which held only that 25 a single presentation of the defect may suffice under the distinct Song-Beverly provision at Section 1793.2(b), which sets a time frame for service and repair to commence. ECF No. 53. 26 8 BMW NA’s motion also discusses two other repair visits that it states occurred after the original manufacturer’s warranty expired, see ECF No. 98 at 14, but these in fact occurred before the 27 original warranty expired (Repair Order No. 789602 occurred on September 15, 2023) or after the 1 Unlimited Mileage Statement of Certification and Coverage” provided to Joanne Saba with the 2 sale, as well as an internal BMW database. Id. The sale document does not list an inception date 3 for the CPO warranty but notes the sale date of July 28, 2022 and the CPO warranty expiration 4 date of September 23, 2024. ECF No. 102-9 at 2. The database lists three dates for the CPO 5 warranty: an “effective date” of September 23, 2019, an “enrollment date” of June 5, 2022, and an 6 expiration date again of September 23, 2024. ECF No. 102-8 at 3. Plaintiffs also cite their cross- 7 examination of BMW NA’s expert, Joe Grijalva, who testified that the CPO program provides 8 coverage for 60 months from the original purchase date and that Peter Pan BMW enrolled the 9 Vehicle in the CPO program on June 5, 2022, weeks before it sold the car to Joanne Saba. ECF 10 No. 102 at 8 (citing ECF No. 87 at 148–50). These dates map onto the database’s “effective date” 11 and “enrollment date.”9 12 Plaintiffs therefore appear to have the better argument—that the CPO warranty was 13 effective from the original date of purchase for five years, but was activated or enrolled by the 14 dealer before sale to Joanne Saba and became available for her use upon purchase. And 15 regardless, BMW NA did not raise the argument that liability must stem from repair orders made 16 during the CPO warranty period until their motion for judgment as a matter of law, so the issue is 17 waived. 18 A Rule 50 motion for judgment as a matter of law requires the Court to find that a 19 “reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [an] 20 issue” and is certainly inappropriate given the substantial evidence in favor of Plaintiffs on this 21 point. Fed. R. Civ. P. 50. Given the extensive evidence favoring Plaintiffs’ position regarding the 22 CPO’s start date, BMW NA cannot make that showing. While erroneous legal rulings or incorrect 23 jury instructions could justify a new trial under Rule 59, Murphy v. City of Long Beach, 914 F.2d 24 183, 187 (9th Cir. 1990), there were no erroneous rulings here because the BMW NA never 25 argued that the Vehicle was a used vehicle or that its status as such limited the scope of the 26 9 Plaintiffs also assert that the jury found that the CPO warranty went into effect on the vehicle 27 purchase date of July 28, 2022, ECF No. 102 at 25–26, but it is not clear which of the jury’s 1 express warranty coverage. And to the extent that the jury instructions were erroneous, any error 2 was invited. A party who requests an instruction invites any error contained therein and, absent an 3 objection before the instruction is given, waives appellate review of the correctness of the 4 instruction.” Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1493 (9th Cir. 1986) 5 (citations omitted). Thus, BMW NA may not obtain a new trial because of jury instructions it 6 affirmatively requested. 7 c. Implied Warranty Claim Under 1795.5 8 BMW NA argues that Section 1792 allows recovery only for a breach of an implied 9 warranty against a “manufacturer” or a “retail seller,” but not against a distributor. ECF No. 98 at 10 15–16. It therefore argues that the Court erred in instructing the jury not to consider whether 11 BMW was a distributor rather than a manufacturer or retailer. 12 This argument does not survive application of Section 1795.5, because that Section 13 extends manufacturers’ obligations under Section 1792 to reach distributors that sell used vehicles 14 with express warranties like BMW NA did here. Cal. Civ. Code § 1795.5 (providing that “the 15 obligation of a distributor or retail seller of used consumer goods in a sale in which an express 16 warranty is given shall be the same as that imposed on manufacturers under this chapter” subject 17 to exceptions). In its reply, BMW NA argues that Section 1795.5 is a “a statute pertaining to 18 express warranties” and therefore does not “override[] the statute pertaining to implied warranties 19 (Civil Code 1792) to impose implied warranties on an entity (‘distributor’) expressly carved out 20 from the implied warranty statute.” ECF No. 103 at 9. But the text of Section 1795.5 could not be 21 clearer that “the obligation of a distributor or retail seller of used consumer goods in a sale in 22 which an express warranty is given shall be the same as that imposed on manufacturers under this 23 chapter.” It does not restrict its effect to provisions exclusively involving express warranties. Id. 24 d. Plaintiffs’ Waiver 25 Plaintiffs failed to advance their theory based on Section 1795.5 at any point before they 26 were asked to respond to BMW NA’s motion for judgment as a matter of law. On that basis, 27 BMW NA argues that they should not be allowed to do so now. ECF No. 103 at 3. Had BMW 1 governing authority that it did not disclose to the Court, the Court would have more sympathy for 2 this argument. 3 It is true that Plaintiffs’ complaint, proposed jury instructions, and proposed special verdict 4 form are inconsistent with their new position based on Section 1795.5. The complaint alleges that 5 the Subject Vehicle is a “consumer good” within the meaning of the Act. ECF No. 1 ¶¶ 20, 28. 6 Consumer goods are defined by Section 1791(a) in relevant part as “any new product or part 7 thereof that is used, bought, or leased for use primarily for personal, family, or household 8 purposes.” Cal. Civ. Code § 1791(a) (emphasis added). The complaint also once refers to the 9 Vehicle explicitly as a “new motor vehicle.” ECF No. 1 ¶ 34 (“Defendant BMW of North 10 America, LLC has failed to either promptly replace the new motor vehicle or to promptly make 11 restitution.”). The complaint never identifies the vehicle as a used car. It also cites a number of 12 provisions of the Act that apply to “consumer goods” or “new motor vehicles” without once 13 referencing Section 1795.5. See ECF No. 1 ¶ 42 (citing § 1792); id. ¶¶ 47–51 (referencing 14 § 1794). Plaintiffs also submitted proposed jury instructions which referenced “new motor 15 vehicles” and listed the implied warranty period applicable to new motor vehicles instead of the 16 distinct time period applicable to used consumer goods under Section 1795.5. ECF No. 41 at 31, 17 35, 36, 39. Plaintiffs clearly did not advance a theory based on Section 1795.5. See Harris v. 18 FCA US LLC, No. 8:24-cv-02676-FWS-ADS, 2025 WL 1837732, at *4 (C.D. Cal. July 2, 2025) 19 (finding that a complaint was too vague to put the defendants on notice of a theory of liability 20 based on Section 1795.5). 21 BMW NA argues that “allowing Plaintiffs to change course after the trial has ended” 22 creates “obvious due process problems” because “BMW NA’s entire defense of this action would 23 have been different.” ECF No. 103 at 4. But BMW NA waited until the fourth day of trial to raise 24 a legal defense based on governing precedent that it had known about for at least six months.10 25 10 Defense counsel not only knew about, but publicly touts his experience litigating, Rodriguez. 26 See https://www.clarkhill.com/people/georges-a-haddad/, permalink https://perma.cc/CT2N-LAZJ (defense counsel’s website advertising his work briefing summary judgment and the intermediate 27 appeal in Rodriguez). Counsel has since repeatedly encountered and applied the California Court 1 Both sides in this case came barreling into court on the day of trial having done very little pretrial 2 preparation, armed with reused sets of motions in limine and jury instructions that fit poorly or not 3 at all the facts of the specific case they were trying. On that record, BMW NA cannot show that it 4 would have tried the case differently had it been made aware of Plaintiffs’ 1795.5 theory earlier.11 5 B. Exclusion of Jared Taylor as a Witness 6 BMW NA argues that the Court erred in excluding repair technician Jared Taylor from 7 testifying at trial. ECF No. 98 at 19–21. Federal Rule of Civil Procedure 26(a) requires parties to 8 disclose to each other “the name . . . of each individual likely to have discoverable information— 9 along with the subjects of that information—that the disclosing party may use to support its claims 10 or defenses.” Rule 37(c)(1) then provides that a party who “fails to disclose information required 11 by Rule 26(a)” is not “permitted to use [that information] as evidence at trial” unless the failure 12 was substantially justified or is harmless. The Ninth Circuit “give[s] particularly wide latitude to 13 the [district court’s] discretion” to issue this or other sanctions under Rule 37(c)(1). Yeti by Molly, 14 Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). 15 In excluding Taylor, the Court relied on several facts. First, Jared Taylor’s name was 16 never included in an initial disclosure because BMW had never provided one. ECF No. 101 at 13. 17 Second, Jared Taylor’s name was not included on the defendant’s list of witnesses submitted with 18 the joint pretrial statement. Id. Third, although Jared Taylor was included in Plaintiffs’ witness 19 list, he was described only as “Technician 82.” Id. at 9, 12–14; ECF No. 38 at 3. Plaintiffs were 20 not made aware of Taylor’s identity until the Court heard arguments from the parties about 21 whether Technician 82 should be admissible as a defense witness; this hearing took place on 22 Friday, May 30, after the jury venire had been selected and one court day before trial. ECF No. 23
24 LLC, No. CV-22-8641-AGR, 2023 WL 11724905, at *1 (C.D. Cal. Dec. 20, 2023); Jenkins v. FCA US LLC, No. 23-CV-01075-JSW, 2024 WL 1141002, at *3 (N.D. Cal. Mar. 15, 2024); 25 Kargar v. BMW of N. Am., LLC, No. 2:22-CV-03047-SPG-KS, 2024 WL 3915218, at *2 (C.D. Cal. Aug. 6, 2024). 26 11 BMW NA also argues that while Federal Rule of Procedure 15(b) allows for amendment of pleadings to conform to evidence presented at trial, such amendment requires the absence of 27 prejudice to the counterparty or that counterparty’s consent. Fed. R. Civ. P. 15(b)(1),(2); see 1 69; ECF No. 101 at 9–11. As the Court held, BMW NA offered no valid justification for its 2 failure to disclose Taylor’s identity to Plaintiffs. ECF No. 101 at 13. 3 The Court also found that BMW’s failure to disclose Taylor as a witness was prejudicial. 4 The eleventh-hour addition caused obvious prejudice to the Court’s schedule and the Plaintiffs’ 5 trial strategy. ECF No. 101 at 13. BMW now argues that there was no threat of prejudice to 6 Plaintiffs because Taylor “personally worked on” the Vehicle and “was referenced in numerous 7 trial exhibits.” ECF No. 98 at 20. But this still does not provide Plaintiffs with notice of 8 Defendant’s intent to call Taylor or what the substance of his testimony would be. In BMW’s 9 motion, it argues that there was no prejudice because “questioning, cross, and redirect” “would not 10 have taken more than a couple hours.” ECF No. 98 at 20. But this misses the point—the Court 11 concluded that Plaintiffs were prejudiced because they would have had to depose Taylor in the 12 middle of trial and then identify and put forward witnesses to oppose Taylor’s testimony, which 13 would have been difficult or impossible. ECF No. 101 at 14. Plaintiffs asserted, and the Court 14 found, that admitting Taylor would cause both prejudice and surprise. See id. at 7–8. Nothing in 15 BMW NA’s motion provides a basis for reversing that conclusion. 16 BMW NA argues that listing Taylor was unnecessary because he was included within 17 Saba’s list of witnesses, and both lists were included in a joint pretrial statement. For the many 18 reasons the Court placed on the record, that argument is unavailing. Most importantly, Taylor was 19 not on the Plaintiffs’ list—someone identified as “Technician 82” was on that list, but Plaintiffs 20 didn’t even know the witness’s real name. 21 During trial, BMW NA moved for the Court to reconsider its exclusion of Jared Taylor on 22 the grounds that Taylor could “speak to the various test drives that he conducted with Ms. Saba” 23 and address arguments raised by Plaintiffs’ expert concerning whether certain issues with the 24 vehicle were adequately diagnosed. ECF No. 87 at 70. The Court determined that the prejudice to 25 Plaintiffs from allowing Taylor to testify at that juncture would be even greater and that the issues 26 which he would address had been disclosed in Plaintiffs’ expert’s report, so BMW NA should 27 have put him on the witness list had they wished to call him. ECF No. 87 at 70–71. BMW NA ] Court now rules for the third time, if they did not wish to be prejudiced then they should have put 2 || Taylor on their witness list. The Court did not abuse its discretion in excluding this witness. 3 Conclusion 4 For the reasons set forth above, Defendants have failed to show that either judgment as a 5 || matter of law or a new trial is warranted. The motion is therefore denied. 6 IT IS SO ORDERED.
7 Dated: March 25, 2026 8 JON S. TIGAR' 9 nited States District Judge 10 1] a 12
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