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Emigdio CARRILLO, Jr., Plaintiff, v. BMW OF NORTH AMERICA, LLC, et al., Defendants.
Order DENYING Defendant's Motion for Summary Judgment (Dkt. 55)
This case arises out of alleged defects in a 2011 BMW M3 purchased by Plaintiff Emigdio Carrillo, Jr. (Carrillo). Defendant BMW of North America, LLC moves for summary judgment on Carrillo's third amended complaint. Dkt. 55 (Mot.). Carrillo opposes. Dkt. 59 (Opp'n).1 The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons stated below, the motion is DENIED.
The parties dispute many of the relevant facts. Carrillo claims he purchased a 2011 BMW M3 with a S65 engine on November 15, 2011 “for personal, family, and household purposes. PUF ¶ 2.2 Carrillo's is the only name listed on the Bill of Sale, on the DMV's registration card for the car at the time of purchase, on the current registration card for the car, and as the car's “Registered Owner” in the DMV's registration records. Id. ¶ 3.
Carrillo secured the financing for the car for the purchase price of $33,698.16 through a loan from the U.S. Navy Federal Credit Union. PUF ¶¶ 6-7; DUF ¶ 5. Carrillo alone signed the financing document. PUF ¶ 7. Carrillo's brother Eduardo 3 made the down payment for the car. Id. ¶ 6; DUF ¶ 6. Carrillo makes the monthly payments on the car, and Eduardo repays him for those amounts. PUF ¶ 8.
The car was purchased from Peter Birk via Auto Trader. DUF ¶ 11. BMW asserts Eduardo researched and identified the car, decided to buy the car, made all the payments for the car, and was the primary driver of the car. Id. ¶¶ 4, 6, 7, 10. BMW claims Eduardo did not speak with anyone other than Birk and “maybe Plaintiff and his parents” before buying the car. Id. ¶ 12. BMW claims “[a]ll of the information that Eduardo had about the Subject Vehicle before he bought the Subject Vehicle came from Peter Birk or AutoTrader.” Id. ¶ 13. Carrillo asserts he and Eduardo “conducted research into the 2011 BMW M3 prior to purchasing the Subject Vehicle ․ [and] looked at BMW's website to learn about the specifications, including price, available options, and packages.” PUF ¶ 1. Carrillo “was unable to produce any of the sales literature that he claims he reviewed before Eduardo purchased the Subject Vehicle.” DUF ¶ 14.
During Carrillo's ownership, the car “experienced multiple engine issues, including but not limited to stalling during operation of the vehicle, erratically fluctuating RPMs at idle, popping noises during idle, smoke emitting from the tail pipe, fuel smells entering the cabin, rough idle, illumination of the ‘service engine soon’ message, and engine rattling.” PUF ¶ 9. The car “was taken to the dealership for repairs no fewer than 19 times, but BMW and its authorized dealer were unable to repair it. These repair records reflect the Subject Vehicle was not repaired by BMW during warranty, which resulted in payments of over $25,000 dollars in repair costs that were incurred in repairing the Subject Vehicle after its warranty had expired.” Id. ¶ 10.
The car came with an express written warranty, which included a 4-year/50,000-mile express bumper-to-bumper warranty, a 4-year/50,000 miles powertrain warranty, a 7-year/70,000-mile California Emission Control Warranty, and an 8-year/80,000-mile Federal Emission Warranty. PUF ¶ 4. BMW claims that its written warranty for the car requires consumers to use Better Business Bureau's (BBB) Auto Line, its informal dispute resolution procedure, before filing a civil action based on the Magnuson-Moss Warranty Act. DUF ¶ 2. Carrillo did not participate in BBB Auto Line. Id. ¶ 3.
II. LEGAL STANDARD
“A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. The court shall grant summary judgment if the movant shows 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). “This burden is not a light one.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). But the moving party need not disprove the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, “the burden on the moving party may be discharged by ‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the nonmoving party's case.” Id. at 325, 106 S.Ct. 2548. If the moving party satisfies this burden, the party opposing the motion must set forth specific facts, through affidavits or admissible discovery materials, showing that there exists a genuine issue for trial. Id. at 323-24, 106 S.Ct. 2548; Fed. R. Civ. P. 56(c)(1). A non-moving party who bears the burden of proof at trial as to an element essential to its case must make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element of the case or be subject to summary judgment. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.
The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is a genuine issue if it reasonably can be resolved in favor of either party. Id. at 248, 106 S.Ct. 2505. “[A] district court is not entitled to weigh the evidence and resolve disputed underlying factual issues.” Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992). Summary judgment is improper “where divergent ultimate inferences may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006)). Instead, “the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (punctuation omitted).
Carrillo brings claims for violation of the Consumer Legal Remedies Act (CLRA), Civ. Code §§ 1750 et seq., and violation of the Magnuson-Moss Warranty Act. Dkt. 32. BMW seeks summary judgment on both claims.
A. Evidentiary Objections
“A district court's ruling on a motion for summary judgment may only be based on admissible evidence.” Oracle, 627 F.3d at 385. A party seeking to admit evidence bears the burden of proof to show its admissibility. Id. “At the summary judgment stage, [the Court does] not focus on the admissibility of the evidence's form. [The Court] instead focus[es] on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
Carrillo objects to certain evidence as irrelevant. Dkt. 59-1 ¶¶ 3, 5, 7, 8, 9, 10. Generally, an objection to evidence on the ground that it is “irrelevant ․ [is] duplicative of the summary judgment standard itself” and thus “redundant” and unnecessary to consider here. Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006); see also Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (“Factual disputes that are irrelevant or unnecessary will not be counted.”). The Court has not relied on any irrelevant evidence.
BMW asserts Carrillo's MMWA claim fails because he did not comply with BMW's informal dispute settlement procedure, BBB Auto Line, before bringing suit. Mot. at 4-7. Carrillo counters BBB Auto Line “violates federal law because BMW does not provide proper notice of the program in its warranty.” Opp'n at 17.
The Magnuson-Moss Act provides that if a warrantor establishes “an informal dispute settlement procedure which meets the requirements of the [Federal Trade] Commission's rules” and “he incorporates in a written warranty a requirement that the consumer resort to such procedure before pursuing any legal remedy under this section respecting such warranty, then (i) the consumer may not commence a civil action ․ under ․ [the Act] unless he initially resorts to such procedure.” 15 U.S.C. § 2310(a)(3).
Federal law provides that a “warrantor shall disclose clearly and conspicuously at least the following information on the face of the written warranty”:
(1) A statement of the availability of the informal dispute settlement mechanism;
(2) The name and address of the Mechanism, or the name and a telephone number of the Mechanism which consumers may use without charge;
(3) A statement of any requirement that the consumer resort to the Mechanism before exercising rights or seeking remedies created by Title I of the Act; together with the disclosure that if a consumer chooses to seek redress by pursuing rights and remedies not created by Title I of the Act, resort to the Mechanism would not be required by any provision of the Act; and
(4) A statement, if applicable, indicating where further information on the Mechanism can be found in materials accompanying the product, as provided in § 703.2(c) of this section.
16 C.F.R. § 703.2(b). “If the warranty is included as part of a longer document, such as a use and care manual,” the phrase “[o]n the face of the warranty” means “the page in such document on which the warranty text begins.” Id. § 703.1(h)(2).
BMW's disclosure of its BBB Auto Line program is on pages 16 to 18 of its Service and Warranty Information Booklet. Dkt. 59-2, Ex. 6 (Booklet) at 16. The Booklet explains that there is an “informal proceeding whereby a neutral third party (mediator) helps the parties to find an acceptable resolution.” Id. (satisfying 16 C.F.R. § 703.2(b)(1)). The Booklet outlines that the program is free of charge to the consumer and provides an address and phone number of the BBB Auto Line program and what information to include when contacting the program. Id. (satisfying 16 C.F.R. § 703.2(b)(2)), and states:
Important: You must use BBB AUTO LINE before asserting in court any rights or remedies created by the Magnuson Moss Warranty Act, (The Act) 15 U.S.C. Sec. 2301, et seq. You may also be required to use BBB AUTO LINE before seeking remedies under your state's “Lemon Law”. If you choose to seek redress by pursuing rights and remedies not created by Title 1 of Magnuson Moss Warranty Act, prior resort to the BBB AUTO LINE is not required by any provision of the Act.
Id. at 16-17 (satisfying 16 C.F.R. § 703.2(b)(3)). The Booklet provides two and half pages of information about the program and provides a phone number to call for further details about the program. Id. at 18 (satisfying 16 C.F.R. § 703.2(b)(4)). This section of the Booklet therefore contains the information required by 16 C.F.R. § 703.2(b).
The Court agrees, however, that Carrillo is not bound by BMW's informal dispute resolution procedure because the information about BBB Auto Line is not contained on the page on which the warranty text begins, and therefore is not “on the face of the warranty.” 16 C.F.R. § 703.1(h)(2). The section explaining the relevant warranties begins on the page after the section on the BBB Auto Line program ends. Booklet at 18-19. None of the warranties outlined in the Booklet mentions BBB Auto Line on the first page of the warranty. See id.
Carrillo relies on a 2018 district court decision, Freas v. BMW of North America, LLC, 320 F. Supp. 3d 1126, 1133-34 (S.D. Cal. 2018), to support that BMW's Booklet fails to provide proper notice of the BBB Auto Line program. Opp'n at 17-19. BMW notes Freas is not binding 4 and argues it is distinguishable because, there, the information the dispute resolution program “was contained on a page separate from the page of the warranty manual where the warranty text begins,” but here the warranty text begins on the page after the end of the BBB Auto Line information. Dkt. 60 (Reply) at 3-4.
Although Freas is not binding and the information regarding the dispute resolution program here was placed differently, the Court agrees it is instructive. Just as in Freas, the page that begins explaining BMW's warranties, page 19, “contains none of the information required by 16 C.F.R. § 703.2(b); rather, that information is provided” on another page. Freas, 320 F. Supp. 3d at 1133. The Table of Contents indicates that information on BBB Auto Line is in a separate section from both the section on “Overview of BMW Limited Warranties” and the sections outlining the 2013 new vehicle limited warranty, rust perforation warranty, federal emissions system defect warranty, California emissions control warranty system warranty, and tire warranty. And nothing on the Table of Contents even hints at what BBB Auto Line is. Booklet at Table of Contents.
The Court acknowledges that the Booklet clearly outlines information about BBB Auto Line and that the information is placed very close to the pages containing the various warranties. But the statute clearly states that the disclosure must be “[o]n the face of the warranty,” which is on “the page in such document on which the warranty text begins.” 16 C.F.R. § 703.1(h)(2). That language is unambiguous and BWW clearly does not comply. Carrillo was therefore not required to exhaust the internal resolution procedure.5 Accord Graham v. Hyundai Motor Am., 367 Ill. App. 3d 617, 622, 305 Ill.Dec. 395, 855 N.E.2d 562 (2006) (finding an owner's manual complied with federal regulations when the first page of text of the warranty section instructed consumers to refer to a section of the manual for steps to be followed in the event of a warranty dispute and contained the required information).
One of the goals of the Magnuson-Moss Act was to “relieve consumer frustration by promoting understanding.” Cunningham v. Fleetwood Homes of Georgia, Inc., 253 F.3d 611, 621 (11th Cir. 2001) (quoting 40 Fed. Reg. 60,168, 60,168 (Dec. 31, 1975)) (citing 119 Cong. Rec. 972 (1973) (remarks of Congressman Moss)); see also H.R. Rep. No. 93-1107, at 1 (1974), reprinted in 1974 U.S.S.C.A.N. 7702, 7702 (stating “[t]he purpose of this legislation is (1) to make warranties on consumer products more readily understood and enforceable”).
It is true that if a consumer read through the entire Service and Warranty Information Booklet at issue here, the customer would see the highlighted information on BBB Auto Line and understand the requirement to engage in the process. But if a consumer reasonably merely consulted the Table of Contents and then turned to the first page of a warranty in the Booklet, as indicated by the Table of Contents, the consumer would not see the requirement to engage in BBB Auto Line. This is contrary to the aim of placing the required program in a single document with the warranty or having the requirement on the first page of the warranty, which is to “inform the consumer of the full extent of his or her obligations under the warranty, and to eliminate confusion as to the necessary steps which he or she must take in order to get warranty performance.” Cunningham, 253 F.3d at 621 (quoting 40 Fed. Reg. 60,168, 60,175 (Dec. 31, 1975)); see also Wolf v. Ford Motor Co., 829 F.2d 1277, 1279 (4th Cir. 1987) (“The FTC regulations are extensive and address all facets of the mechanisms’ operation.”).
Because the information regarding BBB Auto Line was not on the first page of any of the warranties outlined in the Booklet, Carrillo was not required to exhaust the informal dispute resolution procedure, and his claim is not barred.
C. The Magnuson-Moss Warranty Act
BMW claims Carrillo's claims fail because he is not a consumer, was not harmed, and cannot prove causation. Mot. at 8-11.
BMW asserts Carrillo is not a “consumer” within the meaning of the Magnuson-Moss Act because Eduardo paid the down payment and all monthly payments on the car, and regularly drove the car. Mot. at 8-9. Carrillo counters that his name alone is listed on the relevant purchase and ownership documents and he provided the financing, making him a “consumer” within the meaning of the Magnuson-Moss Act. Opp'n at 8-14.
Under the MMWA, the term “consumer” is defined as “a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty ․ applicable to the product, and any other person who is entitled by the terms of such warranty ․ or under applicable State law to enforce against the warrantor ․ the obligations of the warranty ․” 15 U.S.C. § 2301(3).
The Court agrees with Carrillo, Opp'n at 8, that under the plain language of the statute, Carrillo is a consumer within the meaning of the Magnuson-Moss Act. Regardless of who made the down and monthly payments for the car, Carrillo's is the only name listed on the car's Bill of Sale, the DMV's registration card for the car at the time of purchase, on the current registration card for the car, and as the car's “Registered Owner” in the DMV's registration records. PUF ¶ 3. Carrillo secured the financing for the car and alone signed the financing document, making him alone legally obligated to repay it. PUF ¶¶ 6-7; DUF ¶ 5. This makes Carrillo “a buyer ․ to whom such product is transferred during the duration of an implied or written warranty.” 15 U.S.C. § 2301(3).
BMW has not identified any case, and the Court has not found any, that supports that the source of financing, subjective beliefs about who owns the car,6 or time spent driving the car is relevant to the analysis of who is a consumer under the Magnuson-Moss Act. Instead, cases focus on whether there has been a transfer of title and ownership interest. See Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 523 (7th Cir. 2003) (looking to the Uniform Commercial Code (UCC) for guidance interpreting the Magnuson-Moss Act and stating, “it is well established that a sale occurs only where there is a passing of title to a buyer․ In common speech, similarly, a sale is typically understood to require the transfer of title. See Webster's Ninth New Collegiate Dictionary 1037 (1987) (defining ‘sale,’ in relevant part, as ‘the transfer of ownership of and title to property from one person to another for a price’).”); Health Sys. Navigation & Mktg., LLC v. McLaren Auto, Inc., No. SACV 16-1117 JVS (DFMx), 2017 WL 2644634, at *3 (C.D. Cal. Mar. 1, 2017) (finding a lessee was not a consumer “simply because he drove the vehicle” when the vehicle was never transferred to him); Ligato v. Ryder Used Vehicle Sales, Inc., No. CV 19-2345, 2019 WL 3202573, at *2 (E.D. Pa. July 15, 2019) (“How a particular buyer uses the goods is irrelevant as long as the goods are ‘normally used’ for consumer purposes.” (brackets omitted) (quoting Triad Charters, Inc. v. Viking Yacht Co., No. CIV. 88-4977 (CSF), 1989 WL 21763, at *4 (D.N.J. Mar. 6, 1989))); Stark v. Maserati N. Am., Inc., No. CV 10-1243 (JS)(ETB), 2010 WL 4916981, at *2 (E.D.N.Y. Oct. 13, 2010) (looking to the definition of “sale” under the UCC for guidance interpreting the Magnuson-Moss Act and finding it requires a passing of title), report and recommendation adopted, No. 10-CV-1243 (JS)(ETB), 2010 WL 11651626 (E.D.N.Y. Nov. 23, 2010); Cohen v. AM Gen. Corp., 264 F. Supp. 2d 616, 619 (N.D. Ill. 2003) (finding plaintiffs were entitled to enforce the warranty because all rights in the warranty were transferred to them).
Carrillo secured financing for the car and the title of the car was transferred to him in a sale. He is a consumer under the Magnuson-Moss Act.
BMW argues Carrillo cannot prove any harm or damages because Eduardo made all of the down and monthly payments. Mot. at 9-10. Again, BMW has pointed to no cases, and the Court has found none, demonstrating the source of funds is relevant for assessing damages or that a party cannot recover when reimbursed by an unrelated third-party. Courts have held damages under the Magnuson-Moss Act are the “difference between the price of the new car and the worth of the allegedly defective car, reduced by his beneficial use of the defective car.” Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405-06 (7th Cir. 2004). The Court has found no case holding that an individual may not recover because a family member supplied the funds for the purchase of the car.
The Court agrees with Carrillo that BMW's proffered interpretation of “consumer” and “harm” under the Magnuson-Moss Act leads to absurd results that would preclude recovery for individuals in a manner inconsistent with the purpose of the Magnuson-Moss Act. Opp'n at 10 n.4 (“If, for example, a parent buys a vehicle in their name for a child because the parent can secure better financing, and the child agrees to repay the parent, then under BMW's approach, both the parent and child would lose their Lemon Law claims. Specifically, under BMW's approach, the parent would not be able to bring a Lemon Law claim because they would not be considered a ‘buyer,’ and the child would not be able to bring a claim because they would not possess title to the vehicle, making it impossible for the child to return the title when BMW buys the vehicle back.”). As noted above, Carrillo was the consumer of the car. He alleges the car was defective, which would have reduced the value of the car. As the sole name on the title of the car, he purchased the car, even if Eduardo made the payments. If defective, the car is worth less, leading to monetary loss. This is sufficient to establish damages.
BMW argues Carrillo “cannot prove that BMW NA's alleged failure to conform the Subject Vehicle to BMW NA's written warranty was a substantial factor in causing Plaintiff's harm” because it was not his car. Mot. at 10. As noted above, the Court finds Carrillo is a consumer under the Act and adequately alleges harm. This argument therefore fails.
D. The CLRA
BMW makes identical arguments under the CLRA as under the Magnuson-Moss Act: Carrillo is not a consumer, cannot prove harm, and cannot prove causation. Mot. at 11-14. The CLRA forbids “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” Cal. Civ. Code § 1770(a). Under the CLRA, a “consumer” is “an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.” See id. § 1761(d). Again, BMW has not identified any case, and the Court has not found any, that supports that the source of financing, subjective beliefs about who owns the car, or time spent driving the car is relevant for the analysis of whether one is a consumer under the CLRA. Carrillo purchased the car for personal, family, or household purposes: use by him and his family. He is therefore a consumer under the CLRA. BMW's arguments regarding harm and causation fail for the same reasons as discussed above.
Additionally, BMW argues Carrillo cannot prove reliance on any misrepresentations because Eduardo decided to purchase the car, Eduardo researched the car, and neither Eduardo nor Carrillo spoke with or obtained information from anyone from BMW or a BMW dealer. Mot. at 13-14. Therefore, BMW argues, “even if BMW NA had disclosed information about the Subject Vehicle before Eduardo purchased it, Plaintiff cannot prove that Plaintiff would have behaved differently because he was not researching BMW M3 vehicles; Eduardo was.” Id. at 14.
There is a disputed issue of material fact that precludes a grant of summary judgment to BMW on this issue. In his deposition, Carrillo was asked about the research he and his brother conducted. He stated his brother wanted to have an M3 and when asked who started researching the M3, Carrillo stated, “My brother. Definitely my brother. He is – Yeah, he went into and seen it on the website, see how much they were new, see how much they were used, tried to find different – trying to find the one that he wants with the color, with the trims, with the rims, the logo, leather, or – or all the other options.” Carrillo Dep. at 58:15-59:3. When asked if Carrillo helped Eduardo pick out the subject vehicle, he said “He – I don't know so much help him out. He had some options, and, you know, I did – you know, I asked him, ‘Is this what you want?’ And yeah, as far as – Yeah, I believe so. I'd like to believe so.” Id. at 59:14-19.
BMW claims, based on this testimony, “Plaintiff did not research BMW M3 vehicles before the Subject Vehicle was purchased. It was Eduardo who did that research.” Mot at 14. But in his declaration filed with the Opposition, Carrillo states,
[M]y brother Eduardo Carrillo and I conducted research into the 2011 BMW M3 prior to purchasing the Subject Vehicle. BMW advertised the Subject Vehicle as the ‘Ultimate Driving Machine.’ Moreover, my brother and I looked at BMW's website to learn about the specifications, including price, available options, and packages. Had BMW disclosed the defective nature of the Subject Vehicle and its engine to me and my brother, I would have been aware of it and would not have purchased it.
Dkt. 59-2 ¶ 3. Though the jury may ultimately disbelieve this statement, this assertion is not necessarily inconsistent with Carrillo's deposition testimony. While Carrillo stated that his brother did most of the research and began the research, Carrillo also stated he “like[s] to believe” he helped with the selection process. Carrillo Dep. at 59:14-19. Viewing all facts in the light most favorable to Carrillo, there is a genuine dispute of material fact regarding whether Carrillo researched the car and relied on any of BMW's representations before purchase that precludes a grant of summary judgment at this stage.
Carrillo was not required to participate in the BBB Auto Line program because it was not disclosed on the face of – or the first page of – the warranties in the Booklet. Carrillo is a consumer under both the Magnuson-Moss Act and the CLRA because the title of the car passed to him and his name is the only name on all relevant ownership documents. Carrillo has sufficiently asserted damages because the car is worth less if defective. There is a genuine dispute of material fact regarding whether Carrillo relied on any representations by BMW before buying the car. The Court DENIES BMW's motion for summary judgment.
IT IS SO ORDERED.
1. The meet and confer emails exchanged between counsel reflect inappropriate behavior, such as BMW's counsel refusing to provide its position in writing and Carrillo's counsel stating, “I don't know why it's so hard for you to do this.” Dkt. 55-9. The parties are ordered to meet and confer in good faith and with adequate time to discuss the substance of any issues in the future – not the same day a party files a motion. The parties are instructed to meet and confer in person whenever possible. Counsel are reminded that neither of their clients is aided by a lack of civility and professional courtesy.
2. Citations to PUF refer to “Plaintiff's Undisputed Facts,” dkt. 59-1 at 38-44, which incorporates Carrillo's proposed uncontroverted facts. Citations to DUF refer to “Defendant's Statement of Uncontroverted Facts,” dkt. 59-1 at 2-37, which incorporates BMW's proposed uncontroverted facts and Carrillo's responses to those facts. BMW did not file a response to Carrillo's proposed facts, so the Court deems those facts undisputed unless they are directly contradicted by facts BMW asserted. To the extent certain facts are not mentioned in this Order, the Court has not relied on those facts in reaching its decision. To the extent the Court cites to a disputed fact, the Court has found the dispute was not valid or was irrelevant, unless otherwise indicated. The Court has independently considered the admissibility of the evidence and has not considered facts that are irrelevant or based on inadmissible evidence.
3. To avoid confusion, the Court refers to Eduardo Carrillo by his first name.
4. Freas was also decided on the basis that plaintiff purchased a car in Nevada, where the dispute resolution program did not exist. 320 F. Supp. 3d at 1134. That basis in not relevant here, as the program did operate in California.
5. BMW argues the California Department of Consumer Affairs (DCA) certified BBB Auto Line as a “qualified dispute resolution procedure” under the Tanner Consumer Protection Act, which specifies the same minimum requirements as those outlined by the Federal Trade Commission (FTC) for informal dispute settlement procedures. Mot. at 4-5. The program itself may satisfy the FTC's requirements for informal dispute procedures. But that does not mean the notice was sufficient or complied with 16 C.F.R. § 703.2(b), and BMW does not claim the DCA certified the notice in the Booklet as sufficient. Its certification is therefore not relevant.
6. Further, Carrillo stated he bought the car. Dkt. 55-8 (Carrillo Dep.) at 42:9-14 (“Q: Why is your name on a lot of the purchase documents? A. Because I bought the vehicle. Q. To clarify, you bought the vehicle, but Eddie paid for everything; is that correct? A. Yes.”)
Dale S. Fischer, United States District Judge
Response sent, thank you
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Docket No: CV 19-8702 DSF (GJS)
Decided: June 14, 2021
Court: United States District Court, C.D. California.
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