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Orichian v. BMW of North America, LLC

California Court of Appeals, Second District, Third Division

June 12, 2014

TAMAR ORICHIAN, Plaintiff and Appellant,
BMW OF NORTH AMERICA, LLC, Defendant and Respondent.

[As Modified on July 1, 2014]

APPEAL from a judgment of the Superior Court of Los Angeles County No. GC047437, Jan A. Pluim, Judge.

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[Copyrighted Material Omitted]

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Krohn & Moss and Jennifer Basola for Plaintiff and Appellant.

RoganLehrman, Kate S. Lehrman and Robert A. Philipson for Defendant and Respondent.



Tamar Orichian purchased a new 2007 BMW X5 automobile from a BMW dealership. BMW of North America, LLC, expressly warranted the vehicle against defects in materials or workmanship, agreeing to repair or replace any defective parts. Plaintiff filed a complaint for breach of warranty under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) (Song-Beverly)[1] and the federal Magnuson Moss Warranty Act (15 U.S.C. § 2301 et seq.) (Magnuson-Moss) alleging that defendant failed to repair certain defects after several attempts. The trial court concluded that plaintiff’s count for breach of express warranty under Song-Beverly supplanted her count for breach of written warranty under Magnuson-Moss and instructed the jury on a single count for breach of express warranty under Song-Beverly. The jury returned a defense verdict.

Plaintiff contends her count for breach of written warranty under Magnuson Moss is not limited or supplanted by Song-Beverly, and the refusal of her proposed instructions under Magnuson-Moss was prejudicial error. We conclude that the refusal of her proposed instructions was error, but we conclude on this record that the error was nonprejudicial. We therefore will affirm the judgment.

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1. Factual Background

Plaintiff purchased a new BMW X5 from a BMW dealership in August 2007.[2] Defendant provided a written limited warranty for a period of 48 months or 50, 000 miles, whichever occurred first. The limited warranty stated that defendant “warrants 2007 U.S. specification X5 SAVs... against defects in materials or workmanship.... ” Defendant agreed to repair or replace any such defective part within a reasonable time provided that plaintiff took the vehicle to an authorized service center upon the discovery of the defect.

Plaintiff experienced several problems with the car and drove it to a dealership for warranty service on several occasions.[3] The gear shift handle came loose and was replaced in November 2008, at 19, 099 miles. The gear shift knob came apart and was replaced in August 2009. On that same visit, leather trim that was separating from the glove compartment was replaced.

Plaintiff presented the car to a dealership in January 2010, at 30, 632 miles, and again in February 2010 complaining of loud bearing noises coming from the engine area when the engine was started cold and the car’s failure to connect with her phone. The phone problem was resolved, and the alternator drive belt and tensioner were replaced, which seemed to eliminate the noises. Plaintiff also complained that the leather steering wheel cover was peeling, so the cover was replaced. She returned in March 2010 complaining of similar bearing noises when accelerating at high speeds and a different rattling noise when driving on bumpy roads. She left the car with the dealership for a period of time and was told that the mechanics had found nothing wrong and that she should return later for further diagnosis.

Plaintiff returned in April 2010 complaining of bearing noises and a weak battery. The dealership replaced the power steering pump and performed other repairs to the steering and air conditioning systems, and plaintiff’s husband later replaced the battery. She returned in early June 2010 because a door lock was malfunctioning and the car alarm would go off for no good reason. The dealership performed repairs. She returned in late June 2010, at 33, 183 miles, complaining of the same rattling noise that she had experienced earlier. The dealership identified loose parts and secured them.

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Plaintiff returned in July 2010 complaining that she heard noises when steering far to either side. The dealership performed some repairs, but she returned one week later with the same complaint. She also complained of an electrical short noise and a burning odor emanating from the back of the car. The dealership was unable to duplicate the reported problems and performed no repairs at that time.

Plaintiff returned in August 2010, at 34, 391 miles, complaining that she continued to hear the same bearing noises when she turned on the engine and when she accelerated. When she picked up the car, the problem was not resolved. She decided to park the car and not use it after that date because she was concerned about safety, although she and her brother continued to drive the car occasionally. Her husband disconnected the car battery.

Plaintiff, through her counsel, sent a letter to defendant in January 2011 revoking her acceptance of the vehicle and demanding the return of all funds paid toward the purchase, plus attorney fees. She submitted a claim to arbitration pursuant to a provision in the warranty booklet. The arbitrator decided in April ...

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