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Spingola v. BMW of North America, LLC

United States District Court, N.D. California

November 15, 2019



          JOSEPH C. SPERO Chief Magistrate Judge.


         In this action, Plaintiff Darell Spingola asserts claims for breach of express and implied warranties under California's lemon law, the Song Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq. (“the Song Beverly Act”), against BMW of North America, LLC (“BMW”). Presently before the Court is BMW's Motion for Summary Judgment (“Motion”), in which BMW argues that it is entitled to summary judgment on both of Spingola's claims. Spingola conceded in his response to the Motion that his claim for breach of implied warranty fails as a matter of law and therefore, the Court GRANTS summary judgment on that claim in favor of BMW. The only remaining question is whether BMW is entitled to summary judgment on Spingola's claim for breach of express warranty under the Song Beverly Act. The Court finds that it is not and therefore DENIES summary judgment on that claim.[1]


         On January 11, 2011, Spingola purchased a used BMW 535i Gran Turismo (the “Vehicle”) with 9, 353 miles on it from a BMW dealer. Joint Proposed Final Pretrial Order at 4 (“Stipulated Facts”). It is undisputed that the Vehicle was sold subject to BMW's new vehicle limited warranty that covered defects in materials or workmanship for the earlier of four years or 50, 000 miles from the Vehicle's original in-service date of September 1, 2010. Id. Based on the parties' pretrial filings, it appeared that Spingola's breach of express warranty claim was based on this warranty.

         Because Spingola's pretrial filings did not clearly set forth the theory of his claims, the Court asked Spingola's counsel to identify the particular defects upon which his claims were based at the pretrial conference that was held on August 9, 2019. Spingola's counsel identified the following defects that are the basis of his claim: 1) a defect in the VANOS system that caused oil to build up and leak; and 2) improper recall work on the VANOS system that allowed contaminants to flow through the engine, causing problems such as rough running and sputtering. See Transcript of August 8, 2019 Pretrial Conference (Docket No. 88) at 3-4. The Court made clear that Spingola would be held to these two defects as the basis of his claims. Docket No. 88 (Transcript of August 9, 2019 pretrial conference) at 16.

         Spingola's expert, Daniel Calif, explains in his expert report that VANOS refers to a variable valve timing system that is used in 2010 BMW 5 series vehicles and that in some BMW documents it is also referred to as “Valvetronic system.” Calef Decl., Ex. 4 (Calef Report) at 2; see also Curtis Reply Decl., Ex. A (Calef Dep.) at 151 (testifying that the VANOS system and the Valvetronic sytem are “intrinsically tied together” even though they are different systems). Calef testified unequivocally at his deposition that the defects that are the basis of Spingola's claim began when the dealer performed recall work on the Vehicle's VANOS system (“the VANOS recall”), around February 15, 2015. See Rafael Decl., Ex. A (Calef Dep.) at 96-99. According to Calef, after that time, several repair orders showed that error code 135604, which refers to “Valvetronic system: no adjustment possible, ” “ha[d] been set.” Calef Decl., Ex. 4 (Calef Report) at 4 (listing Repair Orders 602037, 606253 and 620525); see also Barry Decl., Exs. 3-5 (Repair Orders 602037, 606253 and 620525). Calef also states in his report that the value of the Vehicle is substantially impaired as a result of the “VANOS defect” - which he describes as “an emissions related defect” - because it would not pass a California smog test and “could not be sold in California but rather would have to be sold to a dealer.” Calef Decl., Ex. 4 (Calef Report) at 6.

         In the Motion, BMW argues that it is entitled to summary judgment on Spingola's breach of express warranty claim because it is undisputed that the new vehicle limited warranty that covered the Vehicle, which covered defects in materials or workmanship for the earlier of four years or 50, 000 miles from the Vehicle's original in-service date of September 1, 2010, had already expired when the VANOS problems began. Motion at 12-13. BMW further asserts that there is no evidence of a VANOS defect - at least before September 1, 2014 when the new vehicle warranty expired. Id. at 13.

         In his Opposition brief, Spingola responds that his claim is not based on the four-year/50, 000 mile warranty but rather, on a seven-year/70, 000 mile emissions warranty (hereinafter, the “7/70, 000 California Emissions Warranty”) that covers, among other things, the VANOS system. Opposition at 2, 5-8 (citing Calef Decl., Ex. 2). Spingola argues that because the VANOS issues he complained of began before this emissions warranty expired and there were at least two repair attempts within that warranty period, there are disputed facts that preclude summary judgment as to the breach of express warranties claim. Opposition at 5-10. Spingola also argues that it is not his burden to prove the existence of a “defect” and that he is only required to show that the Vehicle was not conformed to the express warranty. Id. at 3-5.

         In its Reply brief, BMW argues that the Song-Beverly Act does require Plaintiff to prove the existence of a defect and that the words “defect” and “noncomformity” are used interchangeably in the Song-Beverly Act. Reply at 2-4. BMW further points out that Spingola did not argue in his Opposition that there was evidence of a defect prior to the expiration of the four-year/50, 000 mile warranty, thus implicitly conceding that his claim fails to the extent it is based on that warranty. Id. at 4. BMW does not dispute that the Vehicle is covered by the 7/70, 000 California Emissions Warranty but argues that it does not apply in this case because “[e]vidence of the threshold condition that is required to trigger the emissions warranty - a failed smog test - does not exist” and this is “fatal to [Spingola's] entire emissions warranty theory.” Id. In support of this argument, BMW cites to language in the Vehicle's warranty booklet stating that “[t]o obtain service under this warranty, the vehicle must be brought upon failure of a Smog Check test or upon discovery of the defect, to the workshop of any authorized BMW center, during normal work hours.” Id. at 5 (citing Trial Exhibit 23, p. 35).

         BMW further asserts that Spingola has not pointed to any evidence that there is a VANOS defect and cites to Calef's testimony that the Vehicle's problem is oil contamination “caused by a technician neglecting to perform an unprescribed oil change, ” which BMW contends does not constitute a manufacturer “defect” under the Song-Beverly Act. Id. BMW also points to Calef's testimony conceding that: 1) there was no evidence that the VANOS bolts that were replaced as part of the recall were actually broken or that the VANOS system itself needed to be replaced when the recall work was performed; 2) no VANOS codes ever came up in any of the Repair Orders; and 3) the reference in his expert report to “VANOS system failures causing poor performance and diagnostic trouble code 135604 to be set” was in error because this code actually related to the Valvetronic system, which is a separate system. Id. at 7-11 (citing Curtis Reply Decl., Ex. A (Calef Dep.) at 126-127, 136-137, 104, 106-107, 114, 151, 119). BMW also argues that Calef's theory that the problems Spingola experienced are a result of oil contamination caused by the bolt replacement (the VANOS recall work) is supported only by the timing of the problems and the testimony of Spingola himself that when he performed an “oil flush” it mitigated the problem; BMW points out that Calef has no direct evidence supporting his theory that contaminants entered the engine when it was opened up to perform the recall work. Id. at 12-13.

         III. ANALYSIS

         A. Legal Standards Governing Summary Judgment Under Rule 56

         Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to designate “‘specific facts showing there is a genuine issue for trial.'” Id. (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); Fed.R.Civ.P. 56(c)(3).

         A party need not present evidence to support or oppose a motion for summary judgment in a form that would be admissible at trial, but the contents of the parties' evidence must be amenable to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not find for the ...

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