Robert Smothers v. Bmw of North America, LLC ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SMOTHERS, No. 19-55633
Plaintiff-Appellant, D.C. No.
3:18-cv-01391-CAB-AGS
v.
BMW OF NORTH AMERICA, LLC, MEMORANDUM*
Defendant-Appellee,
and
DOES, 1 to 10, inclusive,
Defendant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted June 2, 2020**
Pasadena, California
Before: FERNANDEZ and OWENS, Circuit Judges, and AMON,*** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
Judge.
Plaintiff-Appellant Robert Smothers appeals from the district court’s
summary judgment in favor of Defendant-Appellee BMW of North America
(BMW) on his Song-Beverly Consumer Warranty Act claims on statute of
limitations grounds. We review de novo a district court’s summary judgment.
Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007). We have
jurisdiction under 28 U.S.C. § 1291. As the parties are familiar with the facts, we
do not recount them here. We affirm.
Song-Beverly claims require plaintiffs to demonstrate three elements:
(1) the vehicle had a nonconformity that was covered by the express
warranty that substantially impaired the use, value or safety of the
vehicle (the nonconformity element); (2) the vehicle was presented to
an authorized representative of the manufacturer for repair (the
presentation element); and (3) the manufacturer or [its] representative
did not repair the nonconformity after a reasonable number of repair
attempts (the failure to repair element).
Oregel v. Am. Isuzu Motors, Inc., 109 Cal. Rptr. 2d 583, 588 (Ct. App. 2001)
(citing Cal. Civ. Code § 1793.2). It is undisputed that “the four-year limitations
period of California Uniform Commercial Code section 2725 governs [actions] for
breach of [the Song-Beverly Act] and [actions] for breach of warranty.” Krieger v.
Nick Alexander Imports, Inc., 285 Cal. Rptr. 717, 720 (Ct. App. 1991). Section
2725(2) indicates that a cause of action typically accrues either “when the breach
2
occurs” or when the breach should have been discovered. Cal. Com. Code
§ 2725(2).
Here, Smothers’ claims accrued no later than December 2013—the point at
which he was aware of the oil consumption issue, and, despite presenting the
vehicle to BMW technicians for repair on multiple occasions, the issue remained.
Thus, in the absence of tolling or estoppel, Smothers’ claims were untimely as of
December 2017. He filed his complaint in May 2018.
1. Smothers argues that the discovery rule, which “postpones accrual . . .
until the plaintiff discovers, or has reason to discover, the cause of action,” applies
to his claims. Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005).
Generally speaking, “suspicion of one or more of the elements of a cause of action,
coupled with knowledge of any remaining elements, will . . . trigger the statute of
limitations period.” Id. Furthermore, a plaintiff is charged with “knowledge that
could reasonably be discovered through investigation.” Nguyen v. W. Digital
Corp., 177 Cal. Rptr. 3d 897, 922 (Ct. App. 2014) (citation omitted). Here,
Smothers testified that he knew of the oil consumption issue as early as May 2012
and was aware that BMW technicians had not remedied the issue after multiple
visits to the BMW dealership by December 2013. Moreover, even if Smothers did
not know the precise nature of the issue, a reasonable investigation, including
explicitly addressing the oil consumption issue with technicians, would have shed
3
light on the inquiry. See Fox, 110 P.3d at 920. As such, the discovery rule does
not delay accrual of Smothers’ claims.
2. Smothers also argues that because BMW technicians lulled him into
inaction, the doctrine of equitable tolling should “suspend or extend a statute of
limitations in order to ensure that a limitations period is not used to bar a claim
unfairly.” Hatfield v. Halifax PLC, 564 F.3d 1177, 1185 (9th Cir. 2009). Under
California law, equitable tolling may apply where: (1) the defendant was given
timely notice; (2) there is a lack of prejudice to the defendant; and (3) there is
“good faith conduct on the part of the plaintiff.” Butler v. Nat’l Cmty. Renaissance
of Cal., 766 F.3d 1191, 1204 (9th Cir. 2014) (citation omitted). Equitable tolling
based on fraud requires a plaintiff to show “that fraudulent conduct by the
defendant resulted in concealment of the operative facts.” Tunac v. United States,
897 F.3d 1197, 1207 (9th Cir. 2018) (internal quotation marks, alteration, and
citation omitted). Here, there is no evidence of concealment as Smothers testified
that he continued to suspect that there was an oil consumption issue after multiple
visits to BMW dealerships. As such, equitable tolling does not apply.
3. Smothers further argues that Bang v. BMW of North America, LLC, a
putative class action filed in the District of New Jersey, tolls the statute of
4
limitations under the class action tolling doctrine.1 “In some instances, a plaintiff
can rely on the filing of a prior class action to vindicate the right in question and
toll the statute in the event that the class is not ultimately certified.” Clemens v.
DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008) (citing Am. Pipe
& Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)). However, because California
maintains an interest in managing its own judicial system, “[t]he rule of American
Pipe—which allows tolling within the federal court system in federal question
class actions—does not mandate cross-jurisdictional tolling as a matter of state
procedure.” Id.; see also Hatfield, 564 F.3d at 1187. Here, Clemens controls, and
the Bang class action does not toll the statute of limitations.
4. Finally, Smothers recycles his equitable tolling arguments in the
context of equitable estoppel. Equitable estoppel “focuses primarily on actions
taken by the defendant to prevent a plaintiff from filing suit.” Lukovsky v. City
& Cty. of S.F., 535 F.3d 1044, 1051 (9th Cir. 2008). For equitable estoppel to
apply, a plaintiff must show, among other things, that the plaintiff was “ignorant of
the true state of facts.” Id. at 1051-52 (citation omitted). As explained above,
there is no evidence that Smothers was ignorant of the true state of the facts at any
1
Smothers includes a motion for judicial notice of the Bang class action. 9th Cir.
Dkt. 16. Smothers’ motion is granted, as the Bang class action is “not subject to
reasonable dispute.” Fed. R. Evid. 201.
5
point. Therefore, BMW was not equitably estopped from asserting a statute of
limitations defense.
AFFIRMED.
6