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Filed 12/29/21 Stinson v. An Luxury Imports of San Diego CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STACI STINSON,

 Plaintiff and Appellant,

v.

AN LUXURY IMPORTS OF SAN 

DIEGO, INC.,

 Defendant and Respondent.

 G058999

 (Super. Ct. No. 30-2018-00973112)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Craig L. 

Griffin, Judge. Affirmed.

Law Offices of Jim O. Whitworth and Jim O. Whitworth for Plaintiff and 

Appellant.

Kolar & Associates, Elizabeth L. Kolar and Tami S. Crosby, for Defendant 

and Respondent An Luxury Imports of San Diego, Inc., dba BMW Encinitas.

* * *
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 Staci Stinson appeals from a judgment following an order granting 

summary judgment to respondent An Luxury Imports of San Diego, Inc., dba BMW 

Encinitas. Appellant contends the trial court erred in granting summary judgment

because there is a triable issue of fact whether respondent breached the implied warranty 

of merchantability when it sold as new a used demonstrator vehicle. As explained below,

the trial court correctly determined respondent is entitled to summary judgment, and 

accordingly, we affirm. 

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint

On February 13, 2018, appellant filed a complaint for violation of the SongBeverly Consumer Warranty Act (Act), alleging two causes of action. The first cause of 

action for breach of express warranty obligations was asserted solely against BMW of 

North America, LLC (BMW NA). The second cause of action for breach of implied 

warranty obligations was asserted against respondent and BMW NA. 

The complaint alleged that in February 2017, appellant had leased a 2017 

BMW X5, which “was, and is, a ‘new motor vehicle’ as defined” under the Act, from 

respondent dealership. It further alleged that the subject vehicle was “a new motor 

vehicle leased with the MANUFACTURER’s new car warranty.” Several months later, 

Stinson returned the vehicle to the dealership for repairs under the express warranty 

because “it exhibited defects, nonconformities, maladjustments, or malfunctions relating 

to [an] undisclosed accident.” In the second cause of action for breach of the implied 

warranty, the complaint alleged that the vehicle was not “merchantable, as evidenced by 

the defects, nonconformities, maladjustments, and/or malfunctions” previously alleged. 

B. Motion for Summary Judgment

On October 25, 2019, respondent moved for summary judgment, arguing 

the undisputed facts established that (1) the subject vehicle was and is merchantable; and 
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(2) by statute, it had no duty to disclose the presale repairs. In the motion, respondent 

relied in part on the deposition testimony of appellant’s husband, who provided the 

background facts relating to the complaint. Appellant’s husband testified that a week 

after taking possession of the subject vehicle, he noticed the back-left rim was discolored. 

After declining the dealership’s offer to repaint the rim at no charge, he had the rim 

repainted for $125. Two weeks later, he was rear-ended while driving the vehicle. After 

taking the vehicle to a body shop for repairs, the repairman, a family friend, opined the 

vehicle had been in a prior accident based on the rear sensors being glued on and the use 

of spray foam on some plastic parts. Appellant’s husband stated he was happy with the 

vehicle’s performance and that it has driven “fine.” The motion also asserted that after 

appellant filed her complaint, respondent conducted an investigation and discovered that 

the vehicle, a demonstrator, had sustained minor presale lot damage and that in December 

2016, it was repaired for a total cost of $890.20. 

Respondent argued the implied merchantability warranty claim was 

meritless because appellant’s husband admitted the vehicle was fit for ordinary purposes, 

which satisfies the implied warranty. It further argued that, pursuant to Vehicle Code 

sections 9990 and 9991, it did not have to disclose the pre-sale repairs, which cost less 

than three percent of the vehicle’s manufacturer suggested retail price (MSRP) because 

that amount was not material.

In support of the motion, respondent attached excerpts from the deposition 

of appellant’s husband and a copy of the repair invoice. It also submitted the declaration 

of Daniel Barajas, the Director of the Collision Center, at BMW Encinitas. Barajas stated 

that he reviewed the repair invoice and photographs of the subject vehicle, and he opined 

the repair of the vehicle comported with BMW repair standards and did not involve any 

safety features. Respondent also submitted the declaration of Darrin Fetterolf, the 

General Manager of the dealership, who authenticated a disclosure document, signed by 
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appellant, acknowledging that the dealership had disclosed the vehicle had previously 

been used as a demonstrator vehicle. 

C. Opposition to Motion

Stinson opposed the motion, arguing it was not timely and that “[a]s a 

matter of law selling a demo as new breaches the express and the implied warranty.” She 

contended the sales contract stated the vehicle was new upon delivery when it was 

actually a used demonstrator vehicle. She further contended the vehicle’s repair invoice 

showing the cost was less than three % of the vehicle’s MSRP was not credible because 

the labor cost listed on the invoice was below market rate. In addition, she asserted the 

“repair invoice is not the only invoice for the damage” and the warranty was “reduced”

due to the used nature of the vehicle. Appellant argued the subject vehicle was not 

merchantable because it would not pass without objection in the trade as a new vehicle. 

In support of her opposition, appellant submitted a declaration from George 

Safar stating the “proper repair for just the damages BMW Encinitas agrees existed 

would be $3,477.01.” In the declaration, Safar did not provide any credentials, claim any 

expertise, or explain his opinion on the cost of repairs. Appellant also submitted her own 

declaration disputing that the dealership properly disclosed the vehicle was a 

demonstrator vehicle. 

D. Reply 

In reply, respondent contended the motion was timely filed and served 

based on the trial date at the time it was noticed. Respondent argued the allegation the 

subject vehicle was used was a new allegation that could not be raised to defeat the 

motion, and that, in any event, the subject vehicle was a “new vehicle” within the 

meaning of Vehicle Code section 430. Respondent further argued appellant failed to 

provide any credible admissible evidence challenging the costs of presale repairs, noting, 

among other things, that Safar failed to lay a foundation for his personal opinion about 

the cost of repairs. Respondent also separately objected to the Safar declaration. 
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E. Trial Court’s Ruling

The trial court granted the motion, finding it was timely based on the 

continued trial date. The court concluded respondent met its burden to show the subject 

vehicle was merchantable because it presented evidence the presale repair did not involve 

any safety features and was made to BMW standards, and the vehicle had performed after

leasing. It further concluded appellant failed to show a triable issue of fact on the claim 

because she presented no admissible evidence the vehicle was used, had been in a prior 

undisclosed accident, or that the presale repairs were subpar or incomplete. The court 

also struck the Safar declaration for lack of foundation, and overruled all of appellant’s 

evidentiary objections. 

II

DISCUSSION

A. Standard of Review

A motion for summary judgment is properly granted “‘if all the papers 

submitted show that there is no triable issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” (Biancalana v. T.D. Service Co. (2013) 

56 Cal.4th 807, 813.) “The moving party bears the burden of showing the court that the 

plaintiff ‘has not established, and cannot reasonably expect to establish, a prima facie 

case. . . .’” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We 

review summary judgment appeals by applying the same three-step analysis applied by 

the trial court: First, we identify the issues raised by the pleadings. Second, we 

determine whether the movant established entitlement to summary judgment, that is, 

whether the movant showed the opponent could not prevail on any theory raised by the 

pleadings. Third, if the movant has met its burden, we consider whether the opposition 

raised triable issues of fact.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) 

“‘Where the evidence presented by defendant does not support judgment in his favor, the 
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motion must be denied without looking at the opposing evidence, if any, submitted by 

plaintiff.’” (Id. at p. 940.) 

“On appeal after a motion for summary judgment has been granted, we 

review the record de novo, considering all the evidence set forth in the moving and 

opposition papers except that to which objections have been made and sustained.” (Guz 

v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “Because a summary judgment 

denies the losing party its day in court, we liberally construe the evidence in support of 

that party and resolve doubts concerning the evidence in that party’s favor.” (Creekridge 

Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 

255.) 

B. Respondent Is Entitled to Summary Judgment

Here, the complaint alleged that respondent breached the implied warranty 

of merchantability under the Act because the subject vehicle had “defects, 

nonconformities, maladjustments, and/or malfunctions” caused by a prior undisclosed 

accident. As defined in the Act, the implied warranty of merchantability guarantees that 

“‘“consumer goods meet each of the following: [¶] (1) Pass without objection in the trade 

under the contract description. [¶] (2) Are fit for the ordinary purposes for which such 

goods are used. [¶] (3) Are adequately contained, packaged, and labeled. [¶] (4) Conform 

to the promises or affirmations of fact made on the container or label.” (Civ. Code, 

§ 1791.1(a).)’” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 26.) “‘The 

core test of merchantability is fitness for the ordinary purpose for which such goods are 

used. [Citation.]’ [Citations.]” (Ibid.) Such fitness is shown if the product is “‘in safe 

condition and substantially free of defects.’” (Id. at p. 27.) “[A] new car need not ‘be 

perfect in every detail’; rather, its implied merchantability ‘requires only that a vehicle be 

reasonably suited for ordinary use.’” (Brand v. Hyundai Motor America (2014) 

226 Cal.App.4th 1538, 1546 (Brand).)
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In its motion, respondent presented evidence that, after the subject vehicle 

was leased, there had been no complaints about its performance. Respondent also 

presented evidence that the presale repairs were de minimis under Vehicle Code section 

9990, complied with BMW’s repair standards, and did not involve any safety features. 

(Cf. Brand, supra, 226 Cal.App.4th at p.1547 [“an important consideration under the 

implied warranty is consumer safety”].) Vehicle Section 9990 allows a dealer to “repair 

minor damage and still lawfully be entitled to treat the car as new.” (Bourgi v. West 

Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1661.) Accordingly, respondent met 

its burden to demonstrate the undisputed facts showed the subject vehicle was 

merchantable when leased. 

Because respondent met its burden, the burden thus shifted to appellant to 

show a triable issue of fact. Appellant failed to present any admissible evidence that any

presale damage to the subject vehicle rendered the vehicle unsafe and not fit for driving, 

or exceeded the threshold permitted by Vehicle Code section 9990. 

Appellant contends respondent breached the implied merchantability 

warranty when it failed to disclose the subject vehicle was a demonstrator and instead 

represented it was a new vehicle.1 As an initial matter, the claim is arguably forfeited 

because the complaint does not allege the vehicle was a demonstrator. (See Laabs v. City 

of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be 

addressed at the motion for summary judgment. The rationale is clear: It is the 

allegations in the complaint to which the summary judgment motion must respond.”].)

1

 Appellant continued to assert at oral argument that the vehicle was used, despite the 

specific contrary allegations in the complaint, and that this breached the packaging 

component of the implied warranty. Counsel, while conceding that there was no 

precedent on point, cited Isip (Isip, supra, 155 Cal.App.4th 19) and Brand (Brand v. 

Hyundai Motor America, supra, 226 Cal.App.4th 1538) as support. As explained in the 

text, neither case supports appellant’s argument. 
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Even if not forfeited, the only evidence in the record shows respondent

disclosed the vehicle was a demonstrator. Moreover,Civil Code section 1793.22, 

subdivision (e)(2), provides that a “‘new motor vehicle”“ includes “a dealer-owned 

vehicle and a ‘demonstrator’ or other motor vehicle sold with a manufacturer’s new car 

warranty.” “A demonstrator is a vehicle assigned by a dealer for the purpose of 

demonstrating qualities and characteristics common to vehicles of the same or similar 

model and type.” (Civ. Code, § 1793.22, subd. (e)(2).) The Act expressly incorporates 

this definition of “‘new motor vehicle.’” (Park City Services, Inc. v. Ford Motor Co., 

Inc. (2006) 144 Cal.App.4th 295, 305.) Thus, the subject vehicle is a “‘new motor 

vehicle’” under the Act because it was sold with a manufacturer’s new car warranty, and 

accordingly, appellant cannot show respondent is liable under the Act for representing or 

labeling the vehicle as “new.” 

In her appellate reply brief, appellant argues for the first time that the 

subject vehicle is a used vehicle because Vehicle Code section 665 defines “‘used 

vehicle’” to include “unregistered vehicles regularly used or operated as demonstrators in 

the sales work of a dealer.” We do not consider arguments raised only in a reply brief.2

Appellant also raises numerous issues which we reject for failure to provide 

record citation or reasoned argument. (See Benach v. County of Los Angeles (2007) 

149 Cal.App.4th 836, 852 [“When an appellant fails to raise a point, or asserts it but fails 

to support it with reasoned argument and citations to authority, we treat the point as 

waived.”]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [“[i]f a party fails to 

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However, appellant provides no legal authority showing this definition of “‘used 

vehicle’” applies to claims brought pursuant to the Act, as opposed to claims brought 

under another statute or common law. For the same reason, the fact that Vehicle Code 

section 11713, subdivision (t), prohibits a dealer from advertising a demonstrator vehicle 

as “‘new’” does not implicate the implied warranty claim. While appellant repeated these 

assertions at oral argument, counsel cited no authority supporting the position that these 

statutes supersede the definitions contained in the Act.
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support an argument with the necessary citations to the record, . . . the argument [will be] 

deemed to have been waived. [Citation.]”].) For example, she argues the motion was 

untimely because “[a]ll discovery and motion dates were cutoff in December 2019,” but

fails to address legal authority holding that a motion for summary judgment is timely if 

heard more than 30 days before the trial date at the time the motion was noticed, which 

happened here. (See, e.g., Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604, 608-

609 [trial court may properly hear summary judgment motion 30 days before continued 

trial date].) 

Appellant also argued the trial court erred in not granting a continuance to 

allow counsel to obtain facts necessary to oppose the motion for summary judgment, but 

our review of the summary judgment hearing transcript and moving papers do not show 

either a request for a continuance, or a good faith showing that a continuance was 

necessary. Her assertion that the trial court should have considered granting a 

continuance sua sponte is unsupported by any citation to authority. 

Appellant faults the trial court for taking her motion to amend the 

complaint off calendar without a hearing or an order, arguing it showed the court was 

biased, but neither provides a record citation to the motion nor presents a reasoned 

argument why the action exceeded the court’s discretion. In any event, there was no 

prejudicial error. “[I]f the proposed amendment fails to state a cause of action, it is 

proper to deny leave to amend.” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 

230.) Appellant argued that the amended pleading would assert the failure to disclose the 

vehicle was a demonstrator violated the Act, but, as discussed above, this claim is 

without legal merit. 

Appellant also faults the trial court for granting two trial continuances

without reopening discovery, but provides no hearing transcripts or reasoned argument 

why the court’s orders prejudiced her defense against the motion for summary judgment. 

Finally, counsel challenges the award of sanctions, but neither provides a record citation 
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nor presents a reasoned argument why the sanctions order was improper. In sum, 

appellant has shown no basis for reversal of the judgment. 

III

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

ZELON, J.*

WE CONCUR:

FYBEL, ACTING P. J.

GOETHALS, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.