                            NOT FOR PUBLICATION                          FILED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


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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.




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