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Bernstein v. BMW of North America, LLC

United States District Court, N.D. California

September 11, 2019

KAREN BERNSTEIN, Plaintiff,
v.
BMW OF NORTH AMERICA, LLC, Defendant.

          ORDER RE: PROPOSED FINAL JURY INSTRUCTIONS

          JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE

         The Court has reviewed the parties' proposed jury instructions and has prepared the attached proposed final jury instructions regarding the legal claims and defenses under the Song-Beverly Act, Cal. Civ. Code § 1790 et seq. In addition, the Court has several questions regarding the parties' claims and defenses. The parties shall each file a written response to this Order and the proposed final jury instructions by noon on Friday, September 13, 2019. The response shall include citations to legal authority.

         1. Do the damages for a breach of implied warranty claim differ from the damages for a breach of express warranty claim? If so, how are the implied warranty damages calculated? See Isip v. Mercedes-Benz USA, LLC, 155 Cal.App.4th 19, 25 (2007).

         2. Is Defendant advancing a statute of limitations affirmative defense? If so, explain how the defense applies as a factual matter and whether the defense applies to both the express and implied warranty claims?

         3. Does Plaintiff contend that the vehicle had a defect at the time of sale?

         4. When did Plaintiff discover the defect?

         5. Is there a factual dispute regarding the number of miles the vehicle was driven before it was first presented to Defendant's authorized repair facility for a repair?

         IT IS SO ORDERED.

         CLAIMS AND DEFENSES

         To help you follow these instructions, I will give you a brief summary of the parties' positions.

         Karen Bernstein asserts that BMW breached the express and implied warranties provided with her 2013 BMW 328i. Karen Bernstein has the burden of proving these claims by a preponderance of the evidence.

         BMW denies those claims. BMW also claims that Karen Bernstein's lawsuit was not filed within the time limits set by law. BMW has the burden of proving this defense by a preponderance of the evidence.

         BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE

         When a party has the burden of proof on any claim by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true.

         You should base your decision on all the evidence, regardless of which party presented it.

         FAILURE TO PROMPTLY REPURCHASE OR REPLACE NEW MOTOR VEHICLE AFTER REASONABLE NUMBER OF REPAIR OPPORTUNITIES - ESSENTIAL FACTUAL ELEMENTS

         Karen Bernstein claims that BMW failed to promptly repurchase or replace her 2013 BMW 328i after a reasonable number of repair opportunities. To establish this claim, Karen Bernstein must prove all of the following:

1. That she purchased a 2013 BMW 328i manufactured and/or distributed by BMW;
2. That BMW gave Karen Bernstein a written warranty that BMW would maintain the utility of the subject vehicle for 4 ...

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