Filed 8/19/15 Bae v. BMW of North America 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


HEIJOO BAE,

     Plaintiff and Appellant,                                          G049547

         v.                                                            (Super. Ct. No. 30-2013-00647057)

BMW OF NORTH AMERICA, LLC,                                             OPINION
et al.,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, Kim
Garlin Dunning, Judge. Motion to dismiss granted.
                   Law Offices of Robert B. Mobasseri, Robert B. Mobasseri and Amy L.
Hajduk for Plaintiff and Appellant.
                   Lewis Brisbois Bisgaard & Smith, Eric Y. Kizirian, Jeffry A. Miller,
Michael K. Grimaldi and Brittany H. Bartold for Defendants and Respondents.
                                          *                  *                  *
              Plaintiff Heijoo Bae appeals from a judgment dismissing her claims against
defendants and respondents BMW of North America, LLC (BMW North America) and
BMW Bank of North America (BMW Bank; collectively, BMW) after the trial court
sustained BMW’s demurrer without leave to amend. While this action was pending, a
federal district court in New Jersey approved a class action settlement involving BMW
North America that was based on the same conduct Bae alleged in this action. Although
the claims administrator sent Bae notice of the need to opt out of the settlement if she
wished to maintain a separate action against BMW, Bae did not opt out of the settlement.
              Based on the settlement, BMW filed a motion to dismiss Bae’s appeal as
moot because we cannot grant her any effective relief even if we conclude the trial court
erred. According to BMW, the release included in the settlement bars Bae’s claims even
if the trial court erred in sustaining BMW’s demurrer without leave to amend. Bae did
not file any opposition to BMW’s motion. We agree the class action settlement bars
Bae’s claims, and therefore we grant the motion to dismiss Bae’s appeal as moot.

                                             I

                            FACTS AND PROCEDURAL HISTORY
              In 2011, Bae purchased a new vehicle from Irvine Eurocars, LLC dba
Irvine BMW (Dealership). According to Bae, the Dealership failed to disclose that it had
registered the vehicle she purchased seven months earlier as a “service loaner,” and her
manufacturer’s warranty began to run at that time. Accordingly, instead of the full
four-year warranty the manufacturer provided, Bae only received a manufacturer’s
warranty with three years and five months left on it.
              In April 2013, Bae filed this action against the Dealership, BMW North
America, and BMW Bank to challenge this practice. She alleged individual and class
claims under the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.), the unfair
competition law (Bus. & Prof. Code, § 17200 et seq.), the Song-Beverly Consumer


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Warranty Act (Civ. Code, § 1790 et seq.), the Magnuson-Moss Warranty Act (15 U.S.C.
§ 2301 et seq.), and the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.). Bae
alleged BMW North America was liable for the Dealership’s conduct on an agency
theory, and BMW Bank was liable as the holder in due course of the retail installment
sales contract Bae signed when she purchased the vehicle.
              The trial court sustained BMW’s demurrer to Bae’s original complaint with
leave to amend because Bae failed to allege sufficient facts to hold these defendants
liable for the Dealership’s conduct. Bae then filed a first amended complaint alleging
additional facts to support her agency and holder in due course theories, and BMW again
demurred. The trial court sustained the demurrer because Bae failed to allege sufficient
facts to state a claim against BMW, but this time the court denied Bae leave to amend. In
October 2013, the trial court entered judgment dismissing Bae’s action against BMW.
Bae timely appealed.1
              In September 2012, before Bae filed this action, Sanjay Saini filed a
putative class action against BMW North America in federal district court in New Jersey.
Saini alleged BMW North America sold consumers new vehicles that previously had
been registered as demonstration or service vehicles without disclosing that the
manufacturer’s warranty began when the vehicle was originally registered, and therefore
the consumers did not receive the full manufacturer’s warranty.
              In November 2013, after the trial court entered judgment against Bae in this
action, Saini and BMW North America conducted a mediation to negotiate a settlement
of Saini’s individual and class claims. Those efforts proved successful and Saini agreed
to settle all claims in exchange for BMW North America extending the warranty of all
class members and reimbursing class members for certain repair expenses that should


       1     The trial court sustained in part and overruled in part the Dealership’s
demurrer to Bae’s first amended complaint. The Dealership is not a party to this appeal.


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have been covered by their warranties. The settlement also included a release of all
claims that class members had against BMW North America and its related entities
regarding these warranty issues.
              In October 2014, the federal district court preliminarily approved the
settlement and certified the following class to complete the settlement: “All consumers
within the United States, at any time after September 28, 2006, (1) who were the initial
purchasers of a BMW Sales Demonstration (‘sales demo’) vehicle or a BMW Aftersales
Mobility Program (‘service demo’) vehicle; (2) that was identified in the contract of sale
as ‘new;’ and (3) were not informed that the vehicle was a sales demo or service demo
vehicle whose warranty had commenced prior to customer purchase.” The federal court
also established the procedures for class notice and class members to object or opt out of
the class.
              In January 2015, while this appeal was pending, the settlement
administrator sent Bae notice of the settlement and her right to object, receive benefits
under the settlement, or opt out and maintain her own action. Bae did not object to the
settlement or opt out. In May 2015, the federal district court granted final approval of the
settlement and dismissed all claims. No one appealed or otherwise challenged the court’s
order and that order is now final.
              BMW filed a motion to dismiss Bae’s appeal in this action on the ground
the settlement bars Bae’s claims, and therefore the appeal is moot. Bae did not file any
opposition to the motion.

                                              II

                                        DISCUSSION

A.     The Appeal Must Be Dismissed Because It is Moot
              “Generally, courts decide only ‘actual controversies’ which will result in a
judgment that offers relief to the parties. [Citations.] Thus, appellate courts as a rule will

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not render opinions on moot questions: ‘[W]hen, pending an appeal from the judgment
of a lower court, and without fault of the [respondent], an event occurs which renders it
impossible for [the reviewing court] if it should decide the case in favor of [appellant], to
grant [appellant] any effectual relief whatever, the court will not proceed to a formal
judgment, but will dismiss the appeal. [Citations.]’ [Citations.] The policy behind this
rule is that courts decide justiciable controversies and will normally not render advisory
opinions.” (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174,
1178-1179 (Ebensteiner); see Giles v. Horn (2002) 100 Cal.App.4th 206, 226-227;
Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014)
¶¶ 5:21 to 5:22, p. 5-6.)
              For example, an appellate court “will dismiss an appeal [as moot] . . . when
the underlying claim is settled or compromised.” (Ebensteiner, supra, 143 Cal.App.4th
at p. 1179.) In Ebensteiner, the Court or Appeal dismissed an appeal from a judgment
entered after the trial court sustained a demurrer without leave to amend. While the
appeal was pending, the parties agreed to a settlement that resolved their dispute and
released the defendant from liability. (Id. at p. 1176.) In dismissing the appeal, the
Ebensteiner court explained it could not grant the plaintiff any effective relief because
even if the court concluded the plaintiff had adequately alleged a claim to overcome the
defendant’s demurrer that claim nonetheless would be barred by the parties’ settlement
and release. (Id. at p. 1180.)
              Similarly, an appellate court will dismiss an appeal as moot when the final
disposition or judgment in another action bars the claims in the appeal and thereby
prevents the appellate court from granting the appellant any effective relief. (See In re
The Paul Bunyan News (1959) 175 Cal.App.2d 80, 82; Guardianship of Thomas (1954)
125 Cal.App.2d 135, 137 [final judgment in Texas awarding father permanent custody
rendered moot appeal from California order granting grandmother temporary custody].)



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              Here, Bae alleged a variety of claims based on the Dealership selling her a
vehicle on which the manufacturer’s warranty already had begun to run without
disclosing that fact. The trial court dismissed the claims based on Bae’s failure to allege
sufficient facts to state a claim against BMW. While this appeal was pending, the federal
district court in New Jersey granted final approval to a class action settlement that
released BMW North America and its related entities from all liability for failing to
disclose to consumers that the warranty on allegedly new cars they purchased already had
started. Bae is bound by this release because the settlement administrator sent Bae notice
of the settlement and she neither objected to the settlement nor opted out of it.
Accordingly, we dismiss Bae’s appeal as moot because her claims would be barred even
if we concluded the trial court erred in either sustaining the demurrer or denying Bae
leave to amend. Moreover, Bae did not file any opposition to the motion and we may
treat that failure as “a consent to the granting of the motion.” (Cal. Rules of Court,
rule 8.54(c); see Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 361.)

                                             III
                                        DISPOSITION

              The motion to dismiss is granted. BMW shall recover their costs on appeal.



                                                   ARONSON, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.



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