Russell v. BMW of North America CA2/3

Filed 3/23/21 Russell v. BMW of North America CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MILTON RUSSELL, B296778
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC610090
v.
BMW OF NORTH AMERICA,
LLC,
Defendant and Respondent.
APPEALS from a judgment and a postjudgment order of
the Superior Court of Los Angeles County, Gregory Keosian,
Judge. Affirmed.
Steven Brower and Tae J. Im, for Plaintiff and Appellant.
Morgan, Lewis & Bockius, Thomas M. Peterson and Mark
W. Allen, for Defendant and Respondent.
_______________________________________
INTRODUCTION
Milton Russell sued BMW of North America, LLC (BMW)1
for violations of the Song-Beverly Consumer Warranty Act (Act)
(Civ. Code,2 § 1790 et seq.) and breaches of express and implied
warranties after he discovered defects in a car he purchased from
BMW. A jury found in BMW’s favor on all of Russell’s claims. On
appeal, Russell contends the court erred in excluding evidence of
a warranty extension BMW issued about two years after Russell
filed this lawsuit. Russell also contends we must reverse BMW’s
$16,004.01 costs award if we reverse the judgment. As we
explain, any error in excluding evidence of the warranty was
harmless. Accordingly, we affirm the judgment and the order
awarding costs.
FACTUAL AND PROCEDURAL BACKGROUND
1. Issues with Russell’s Car
In December 2012, Russell bought a new car from BMW.
The car was covered by a limited warranty, which expired after
the earlier of four years or 50,000 miles of use.
During the first few years Russell owned the car, it
consumed more oil than Russell believed was normal. Russell
never saw the car leak oil or expel smoke from the exhaust,
however. When the car had about 2,000 miles on it, Russell
informed a “serviceman” at one of BMW’s dealerships that he
believed the car was consuming too much oil.
1Russell also sued South Bay BMW, but he later dismissed that entity
without prejudice.
2 All undesignated statutory references are to the Civil Code.
2
When Russell brought his car into a BMW dealership for
service at around 39,000 miles, the dealership found a leak in the
car’s radiator. The dealership replaced the radiator.
In September 2015, when the car had about 50,700 miles of
use, the car’s “ ‘check engine’ ” warning light activated while
Russell was driving on the freeway. The car’s engine then began
to lose power as the car went into “ ‘limp mode’ ” and decreased
its speed to 45 miles per hour. Russell brought the car to a BMW
dealership, where a technician discovered the car’s crankcase
ventilation line3 was leaking, which had caused the car to
“ ‘misfire.’ ” The technician also noted that several of the car’s
cylinders were having issues with “ ‘hot mass air flow.’ ”
Because the car’s warranty had expired, the dealership
quoted Russell about $1,085 to repair the crankcase ventilation
line. The dealership also told Russell that his car needed
additional repairs unrelated to the damaged ventilation line and
the car’s malfunction on the freeway. Russell declined to have the
dealership replace the ventilation line or make the other repairs.
Instead, he had an independent mechanic replace the crankcase
ventilation line for $500.
In October 2015, Russell called a BMW representative to
report that he was having problems with his car. Russell told the
representative that the car had lost power while he was operating
it and that he believed the car consumed too much oil. Russell
didn’t make a specific request for BMW to replace or fix his car,
but he asked the representative what BMW could offer him. The
3Throughout the record, this part is also referred to as a “crankcase
ventilation hose” or a “crankcase hose.” For consistency, we refer to the
part as a crankcase ventilation line.
3
representative provided Russell with an address where his
lawyer could contact the company.
Around July 2016, when the car had about 68,200 miles on
it, Russell brought it to a BMW dealership for service. The
dealership replaced the car’s crankcase ventilation line at no cost
to Russell. Although the ventilation line wasn’t broken, the
dealership replaced the part because of a service action that
BMW had issued before Russell brought the car in for service.
During a subsequent visit to a BMW dealership for an oil change,
Russell’s car had an unspecified “drive train malfunction” that
the dealership didn’t disclose to Russell.
According to Russell’s expert, the car’s primary defects
were excessive oil consumption and misfires caused by faulty
piston rings. The expert noted that BMW had documented one
misfire in Russell’s car shortly after it exceeded 50,000 miles of
use, but none of BMW’s reports indicated the car had any
misfires or issues with excessive oil consumption before it
reached 50,000 miles. During an inspection in September 2017,
when the car had more than 90,000 miles of use, the expert
observed misfires in six of the car’s eight pistons. The expert
didn’t testify about any connection between the car’s crankcase
ventilation line and its excessive oil consumption or misfires.
2. Russell Sues BMW
In February 2016, Russell sued BMW for violations of the
Act and breaches of express and implied warranties. Specifically,
Russell asserted claims for: (1) violation of section 1793.2,
subdivision (d) (first cause of action); (2) violation of section
1793.2, subdivision (b) (second cause of action); (3) violation of
section 1793.2, subdivision (a)(3) (third cause of action); (4)
breach of express warranty in violation of sections 1791.2,
4
subdivision (a), and 1794 (fourth cause of action); and (5) breach
of implied warranty in violation of sections 1791.1 and 1794 (fifth
cause of action).4 Russell alleged that during his car’s warranty
period, BMW failed to timely repair or replace the car after it
suffered defects causing: excessive oil consumption; radiator
leaks; crankcase ventilation line leaks; issues related to the
transmission, vent valves, and vent valve connecting lines; and
activation of the drivetrain malfunction, check engine, low
coolant, and low oil lights.
In September 2018, BMW issued a limited warranty
extension for the crankcase ventilation lines on certain models of
its cars, including the model Russell purchased.5 BMW extended
the warranty for a qualifying model’s crankcase ventilation line
to 10 years or 120,000 miles. The Warranty Extension didn’t
modify any other aspect of a car’s existing limited warranty. The
Warranty Extension established a reimbursement procedure for
qualifying owners like Russell who had their crankcase
ventilation lines repaired or replaced before the extension was
issued. To obtain reimbursement, an owner needed to submit a
“reimbursement request” online or through mail or fax and
4After the evidence phase of trial, Russell dismissed the third cause of
action as well as the fourth cause of action for breach of express
warranty to the extent it alleged a violation of section 1791.2,
subdivision (a).
5 BMW also drafted a letter intended to inform qualifying owners
about the warranty extension and how to obtain reimbursement for
crankcase ventilation line repairs made before the extension was
issued. Because Russell doesn’t distinguish the two documents in his
appellate briefs, we collectively refer to the warranty extension and
letter as the “Warranty Extension” or “extension.”
5
submit “ ‘PDF files’ of the supporting documentation” showing
the owner had the car’s crankcase ventilation line replaced before
the extension was issued.
A few days before trial began in late January 2019, Russell
indicated for the first time that he intended to rely on the
Warranty Extension to prove his claims.6 Specifically, Russell
wanted to use the extension to supplement his expert’s opinion on
whether BMW created “obstacles” for how their dealerships
should repair cars and whether BMW ever “permanently
repaired” Russell’s car. BMW argued evidence of the Warranty
Extension should be excluded because the extension didn’t exist
at the time the parties conducted discovery and the parties’
experts were never asked to provide an opinion based on the
extension when they were deposed.
The court excluded evidence of the Warranty Extension and
precluded Russell’s expert from relying on it during his
testimony. The court reasoned: “And now we have these
documents subsequently acquired actually on the day of trial or a
day after trial. … I think it’s just too late in the game to have the
expert testify or to change his opinion based on these documents.
[¶] And I’m also not sure relevance-wise whether how relevant
they are. I mean, these are documents prepared in September
and July of 2018 when the claims that this action is based on
occurred way, way, way prior to that, as well as it just being an
unfair surprise, even though they are defense documents, they’re
6At the same time, Russell also tried to introduce similar warranty
extensions for fuel injectors and high-pressure fuel pumps on most of
the same BMW models. Those warranty extensions aren’t relevant to
the issues raised in this appeal.
6
BMW documents, they were never raised at least for purposes of
expert opinions prior to the date of trial.”
During the evidence phase of trial, Russell renewed his
request to admit evidence of the Warranty Extension, which the
court denied. The court also sustained one of BMW’s objections to
a question Russell asked one of BMW’s customer support
engineers about the extension.
The jury returned verdicts in BMW’s favor on all of
Russell’s claims. The jury found that although Russell’s car had a
defect covered by warranty that substantially impaired the car’s
value, use, or safety, BMW did not fail to complete necessary
repairs within a reasonable time. The court entered judgment in
BMW’s favor.
After judgment was entered, BMW requested $34,159.21 in
costs. The court granted Russell’s motion to tax costs reducing
BMW’s costs award to $16,004.01.
Russell appeals from the judgment and the order awarding
BMW costs. We consolidated the appeals for purposes of briefing,
oral argument, and decision.
DISCUSSION
Russell contends the court prejudicially erred when it
precluded him from introducing or relying on evidence of the
Warranty Extension. Had the court admitted that evidence,
Russell claims, he could have proved BMW violated the Act and
the express warranty covering his car. Russell also contends he
should have been allowed to use evidence of the Warranty
Extension to impeach one of BMW’s witnesses who testified
Russell was not entitled to a reimbursement for the costs of
replacing his crankcase ventilation line. As we explain, any error
in excluding the evidence was harmless.
7
The Act is intended to protect consumers who purchase
products covered by an express warranty. (Robertson v. Fleetwood
Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785,
798.) If a manufacturer can’t repair a product covered by a
warranty after a reasonable number of attempts, the Act requires
the manufacturer to replace the product or reimburse the buyer.
(§ 1793.2, subd. (d)(1).) The Act applies to consumers, like
Russell, who purchase “new motor vehicles.” (§ 1793.2, subd.
(d)(1).)
A buyer who is damaged by a manufacturer’s violation of
the Act may bring an action for damages and other legal and
equitable relief. (§ 1794, subd. (a).) To prove a violation of the Act,
the buyer must show: (1) the vehicle had a nonconformity covered
by the express warranty that substantially impaired the use,
value or safety of the vehicle; (2) the vehicle was presented to an
authorized representative of the manufacturer of the vehicle for
repair; and (3) the manufacturer or its representative did not
repair the nonconformity after a reasonable number of attempts.
(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th
1094, 1101.)
Before excluding evidence, the trial court must weigh its
probative value against the likelihood that its admission will
“necessitate undue consumption of time or … create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) We review a court’s
decision to exclude evidence for abuse of discretion. (Christ v.
Schwartz (2016) 2 Cal.App.5th 440, 446–447 (Christ).) We will
not reverse that decision unless it was arbitrary, capricious, or
patently absurd and resulted in a miscarriage of justice. (Ibid.)
To show there was a miscarriage of justice, the appellant must
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demonstrate “it is reasonably probable that [he] would have
received a more favorable result at trial had the error not
occurred.” (Id. at p. 447.)
Russell insists that had he been allowed to introduce
evidence of the Warranty Extension he could have proved BMW
violated an express warranty when it did not reimburse him for
the cost of replacing his crankcase ventilation line in September
2015. As we explained above, the Warranty Extension
established a procedure under which an owner could request
reimbursement for the cost of replacing a qualifying car’s
crankcase ventilation line. Russell, however, never claimed in the
trial court, and he doesn’t claim on appeal, that he could have
presented evidence showing he requested a reimbursement for
that expense under the Warranty Extension. And nothing in the
extension indicates an owner is entitled to receive a
reimbursement without first making a request and providing
documentation that shows the owner made repairs covered by the
extension. Thus, Russell hasn’t shown it is reasonably probable
that but for the court’s exclusion of evidence of the Warranty
Extension, he could have proved a violation of the Act or a breach
of an express warranty based on BMW’s failure to reimburse him
for the cost of replacing his car’s crankcase ventilation line.
(Christ, supra, 2 Cal.App.5th at p. 447.)
Russell also claims his expert could have relied on evidence
of the Warranty Extension to establish a “potential connection
between the failure of the crankcase ventilation line to: (1) the
excess oil consumption; (2) the ‘limp mode’ [Russell] experienced
on the freeway; and (3) the drivetrain malfunction lights the
Vehicle experienced.” But Russell points to nothing in the
Warranty Extension that would provide new or additional
9
evidence connecting the car’s problems with the crankcase
ventilation line to the defects Russell claims his expert could
have testified about. Indeed, even before Russell sought to
introduce evidence of the Warranty Extension, his expert was
aware that the car had issues with its crankcase ventilation line
and that the part was replaced twice, once in September 2015
and again in July 2016. Yet, the expert never testified that the
car’s defects involving excessive oil consumption, going into limp
mode, and activation of the drivetrain malfunction light were
related to defects in the crankcase ventilation line. Nor did the
expert testify that the ventilation line continued to cause the car
problems after either time it was replaced. Thus, it’s not
reasonably likely that had the court admitted evidence of the
Warranty Extension, Russell’s expert could have established a
connection between the faulty crankcase ventilation line and any
other defect that would constitute a violation of the Act or a
breach of an express warranty.
Russell next contends the court should have allowed him to
rely on evidence of the Warranty Extension to impeach Anthony
Cavanaugh, BMW’s after sales area manager. At trial, Russell’s
counsel asked Cavanaugh whether he had “seen anything
showing [Russell] was reimbursed by BMW” for the expense of
replacing the crankcase ventilation line in September 2015.
Cavanaugh replied, “No, and he has no entitlement to
reimbursement for it.” Cavanaugh later testified that BMW
didn’t replace the crankcase hose in Russell’s car for free in
September 2015 because Russell’s car had exceeded 50,000 miles
of use, and the warranty had therefore expired, before Russell
brought the car in for service. According to Russell, Cavanaugh’s
testimony was false because: (1) the warranty for his car’s
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crankcase ventilation line was extended to 120,000 miles when
BMW issued the Warranty Extension; and (2) the extension
entitled Russell to request reimbursement for the amount he
spent to replace his car’s crankcase ventilation line in September
2015. By excluding evidence of the Warranty Extension, Russell
complains, the court precluded him from exposing the falsity of
Cavanaugh’s testimony.
This argument lacks merit. As we explained above, Russell
doesn’t claim on appeal, nor did he claim below, that he could
have presented evidence showing he made a request for
reimbursement of the cost to replace his car’s crankcase
ventilation line in September 2015. Thus, Cavanaugh’s testimony
that Russell wasn’t entitled to reimbursement was, at most,
ambiguous. In any event, any error related to Cavanaugh’s
testimony about Russell’s right to reimbursement was harmless.
That is, Russell hasn’t shown it is reasonably likely he could
prove BMW violated the Warranty Extension to the extent it
allows qualifying owners to be reimbursed for out-of-pocket
expenses used to replace their cars’ crankcase ventilation lines.
Likewise, any error related to Cavanaugh’s testimony that BMW
didn’t replace the crankcase ventilation line in Russell’s car free
of charge in September 2015 because the car’s warranty had
already expired was harmless. BMW replaced the car’s
ventilation line free of charge in July 2016, and Russell didn’t
present any evidence showing his car continued to experience
problems related to that part.
Finally, Russell argues for the first time in his reply brief
that but for the court’s exclusion of the Warranty Extension, he
could have proved a claim for violation of an express warranty
under Commercial Code section 2313. This claim isn’t properly
11
before us because Russell didn’t raise it in his opening brief, nor
did he ask the court for leave to amend his complaint to allege a
violation of Commercial Code section 2313 when he sought to
introduce evidence of the Warranty Extension. (REO
Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489,
500 [appellate courts won’t consider issues raised for the first
time in a reply brief because it deprives opposing counsel of the
opportunity to respond].) Regardless, any error in excluding
evidence of the Warranty Extension was harmless because, as we
explained above, Russell hasn’t shown that but for the court’s
exclusion of that evidence, there was a reasonable probability he
could have established a connection between the defects in his
car’s crankcase ventilation line and any breach of an express
warranty.
In short, we conclude any error in excluding evidence of
the Warranty Extension was harmless.7 Because we affirm the
judgment, we also affirm the postjudgment order awarding BMW
$16,004.01 in costs.
7In light of this conclusion, we need not address BMW’s argument that
Russell was precluded from relying on the extension because it created
new rights, such as a right to reimbursement, that were never pled in
the operative complaint.
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DISPOSITION
The judgment and postjudgment order are affirmed. BMW
shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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